Jan 28, 2009

Same-Sex Spouses Can't Go It Alone in the Lone Star State

In the bad old days before no-fault, judges could deny a spouse's request for a divorce if the judge didn't think the grounds were sufficient. Now every state allows no-fault divorce, and a divorce can be granted on the basis of "irreconcilable differences" or the like. This means that anyone who wants a divorce can get one, right?

Well, not exactly. If you're a same-sex couple with a legally recognized marriage, domestic partnership, or civil union from one of the states that allows such relationships, you may not be able to untie the knot if you're living in a state that doesn't recognize same-sex relationships -- say, for example, Texas.

Two men who married in Massachusetts have filed for divorce in Texas, but the state's attorney general says that he will intervene in the case and seek to prevent the court from entering a divorce decree, because according to Texas law, the two men aren't actually married -- Texas voters passed a constitutional amendment banning same-sex marriage in the state. 

This isn't the first case of its kind -- a Rhode Island judge refused to allow two women married in Massachusetts to divorce in Rhode Island on the same basis, and couples have struggled in other states to obtain enough recognition of their relationship to allow them to end it. If the state of residence won't grant a divorce, the only option is for one or both partners to return to the state where they were married (or joined in domestic partnership or civil union) and re-establish residency there. Every state has a residency requirement, and Massachusetts' requires that a spouse must have lived there a full year before filing for divorce. (California domestic partners can use the California courts for their divorce regardless of where they're living when they break up, but this is an unusual rule.)

So... make your choices carefully, people! Yes, the choice of who you marry is the most important, but we're not qualified to comment on that. But before you sign on the dotted line, consider whether you might be moving to another state, learn that state's laws, and consider the possibilities. Otherwise you may get more than you bargained for.   

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