Divorce complications arise among states for same-sex couples

 Editor - Now that more and more states have given gays the right to marry, and the Supreme Court has seemed to support that, what will be the issues surrounding divorce?  And will the divorce rate among gays mirror that of straights or will the relationships be more permanent due to the easing of marriage laws and opportunities.

Indeed problems have already arisen. Given the differences in the laws referencing gay marriage, it is now occurring that some gay couples, just like straight ones, get divorced but in this case try to do this in states where they could not officially be married.  What happens under these circumstances.

The number of states that permit gay marriage is growing. These jurisdictions logically also grant divorces to homosexual couples who are legally married. However, the legal status of married same-sex couples is not recognized in many other states that define marriage as a union existing solely between a man and a woman.

Texas is one of these states with this type of dilemma, as it does not recognize gay marriage, and doesn't allow gay marriage to be performed.  But it is finding the reality that some homosexual couples legally married in Connecticut, Vermont, Massachusetts, Iowa, New Hampshire or Washington, D.C. and other areas may move to Texas to seek a divorce.

A few years ago two lower courts have ruled that these couples may obtain divorces in Texas because of its constitutional obligations of equal protection under the law, and full-faith-and-credit recognition of other states' legal acts. However, the Texas Attorney General tried to halt the divorces.  He did that  by insisting that homosexual marriages legally recognized in other states should be voided under Texas law.

What are the arguments being used against homosexual divorce in Texas?

The Texas Attorney General argued that avoidance is the proper way to terminate "any purported marriage that is not legally valid in the state of Texas, including the same-sex relationships that may be considered marriages in other states." He insisted that because Texas defines marriage as a union between a man and a woman, the state cannot dissolve a same-sex marriage that legally does not even exist in Texas. Thus, in granting a same-sex divorce, Texas would be recognizing same-sex marriage, which is against Texas law.

Conversely what are the arguments in favor of allowing divorce in Texas.  Those who maintain divorce should be allowed in Texas outline the fact that divorce is a complex process and involves several elements beyond simply severing the legal ties between two people. Issues of spousal support, asset division, child support and child custody are governed by the family law process of divorce. By not allowing married couples to divorce, the equal parenting rights of both parties may be compromised in custody proceedings. Bob Luther, an attorney in some of the cases, insisted at the time that it is vital that a homosexual couple be given equal access to the legal framework and judicial oversight that all other couples are subject to in child custody cases, for the benefit of both the parents and the children in question.

The financial settlement of the couple may also be negatively affected. Should the Attorney General succeed in voiding these marriages, the couples will not be allowed to use legal property settlements that heterosexual couples are entitled to enter into under the law. Another lawyer representing one of the divorcing homosexual couples insists that by forcing same-sex couples to void their marriages, rather than using the established divorce process, Texas would be creating a separate class for homosexuals in violation of equal protection. They are, he maintains, entitled to divorce because they obtained legally valid marriages.

These issues are not just those of Texas, although the patterns of Texas history tells us something. Texas has recognized marriages that were legalized out-of-state. Generally, all states recognize out-of-state marriages under the doctrine of Full Faith and Credit. States generally grant divorces to those who wed out of state. However, states are divided on the matter of recognizing out-of-state homosexual marriages and grant homosexual divorces. At one time Pennsylvania judge refused to divorce a lesbian couple who had married in Massachusetts, and Rhode Island therefore similarly disallowed homosexual divorce. New York, on the other hand,  grants divorces to homosexual couples who have been legally wed elsewhere.

The process of working out the how-tos in divorce cases between same-sex couples has been shown to take time and can be complicated.

So long as there is no national law on same-sex marriage, and the several states each impose its own according to what it deems appropriate and/or the will of the people, most legal experts tell us the process of divorce will remain complicated.

But then marriage and divorce, as we know, are complicated for any couple, same-sex or heterosexual. It will likely take years to even out the issues. In the meantime, homosexual couples will be forced to remain in their marriages, obtain residency in states that grant homosexual divorce or file for divorce in those states not yet permitting same-sex marriage with the uncertainty of whether the divorce decree will ultimately be upheld as legal.