Gay Divorce? Good Luck!

"The [Massachusetts gay marriage] statute does not confer subject-matter jurisdiction upon the Family Court of Rhode Island."
(Chambers v. Ormiston, 935 A.2d 956, 963 (R.I., 2007))

Gay marriage has, of course, been very much in the news for some time now. Inevitably, gay divorce issues are now arising, not just in Massachusetts (still the only state to permit gay marriages) but also in many states that explicitly prohibit gay marriages.

Thousands of gay couples have gotten married in Massachusetts over the past few years. Many of those who were not originally Massachusetts residents returned to their home states after the wedding ceremony. If California winds up permitting gay marriages (which it will shortly, unless a November referendum overturns the court decision legalizing them), many thousands more gay couples will marry there but will make their homes elsewhere. Unfortunately for them, if things go wrong in their marriages they're probably not going to be allowed to get divorced anytime soon in their home states.

A heterosexual person can normally file for divorce in any state in which he or she lives, regardless of where the marriage ceremony took place. A couple could, for example, get married in Minnesota, move to Arizona, and then split up, with the wife remaining in Arizona and the husband moving to California. At that point, the wife could file for divorce in Arizona or the husband could file in California. Neither party would have to return to Minnesota to file for divorce.

According to the Rhode Island Supreme Court, however, unless that state passes a gay marriage statute, its courts cannot grant divorces to gay residents who were married in Massachusetts or any other state permitting gay marriages. The case I quoted from involves a lesbian couple who had gotten married in Massachusetts, but then immediately returned to Rhode Island. Although they could have gotten a divorce in Rhode Island if they were a heterosexual couple, one or the other of them will have to establish residency in Massachusetts (or, maybe in the future, California) if a divorce is ever going to be granted. Massachusetts has a one-year residency requirement for filing for divorce (one of the longest in the nation), so a potential divorce litigant would have to severely disrupt his or her life for an extended time just to meet the minimum filing requirements.

Chances are, other states will follow the Rhode Island Supreme Court's reasoning if and when similar cases reach their highest courts. The United States Supreme Court will eventually get into the act, because Federal constitutional issues such as "equal protection" and "full faith and credit" will have to be addressed. But that could take years, and until then gay marriage partners will have to deal with a crazy-quilt of conflicting and confusing state laws. And I'm not even talking about "civil union" partners in places like Vermont, who have some, but not necessarily all, of the benefits of marriage (but, arguably, only in Vermont).

Interestingly enough, the same states that deny gays the right to get married or divorced can and do enforce custody, child support, and alimony orders issued in gay marriage or civil union cases by the Massachusetts or Vermont courts. Under the terms of the Uniform Child Custody Jurisdiction & Enforcement Act, the Uniform Interstate Family Support Act, and similar laws, court orders issued by a different state cannot be ignored simply because they arose out of a civil union or gay marriage.

The moral of all this? Gay couples need to be aware that gay marriage does not automatically equal gay equality in family law matters. But perhaps the commitment and courage required to live openly as a gay married couple might mean that divorce is a less likely outcome than it is with heterosexual couples. If that's true, it would be good news not just for for gay couples but for the rest of us as well. The last thing this society needs is a higher divorce rate.