Can Married Same-Sex Couples Get a Divorce?
Since same-sex marriage is only recognized in 17 jurisdictions, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington and Washington D.C., getting a same-sex divorce can be difficult in other states.
If you and your same-sex partner were married under Massachusetts law, you can only get a “no fault” divorce if you or your spouse were residents of the state or if the cause of divorce is an act of infidelity that occurred in Massachusetts. If you do not meet these criteria, then you will not be able to get a legal divorce.
However, the legal effect of a non-Massachusetts couple who is prevented from getting a divorce may not be great, as no other government, state or federal, recognizes the same-sex marriage in the first place. The practical effect (property and custody issues), on the other hand, may be of great difficulty.
Same-Sex Divorces in Massachusetts
All divorces in Massachusetts are treated the same, regardless of whether they involve heterosexual couples or same-sex couples. Massachusetts requires that couples seeking divorce reside in the state for at least one year prior to filing for a divorce.
This gives married Massachusetts same-sex couples a great advantage over others because it allows them to utilize the state rules and procedures for divorces. Those who do not have access to same-sex divorce often must rely on many different courts in order to legally divide property.
However, there are a few issues which make same-sex divorces tricky. For example, most divorce settlements take into account the length of the relationship. A same-sex couple may have been living together for 20 years before Massachusetts decided to allow same-sex marriage. Thus, should the length of the relationship be evaluated at 20 plus years, or the much shorter length of the legal marriage?
Same-Sex Divorces in New Hampshire
In New Hampshire, same-sex divorce is the same as heterosexual divorce. The residency requirement for New Hampshire is that both spouses must be in the state and that the filing spouse must have spent at least a year in New Hampshire prior to filing for divorce.
Same-Sex Divorce in Iowa
Iowa requires that all couples seeking a divorce reside in the state for at least a year prior to filing.
Same-Sex Divorce in New York
New York requires that the filing spouse be in the state of New York and that the filing spouse has lived in New York for 2 consecutive and continuous years before the filing.
Same-Sex Divorce in Vermont
Vermont requests that either spouse be a resident for six months before filing. At least one spouse must reside in the state for a year (can include the six months for filing) before a family state court can issue a decree.
Same-Sex Divorce in the District of Colombia
In Washington D.C., either spouse must be a resident for six months before filing.
Same-Sex Divorce in Connecticut
The state of Connecticut does not have residency requirement for filing, but either spouse must be a resident for at least a year before a final judgment decree can be given.
Children and Same-Sex Divorce
In general, states which allow same-sex marriage, same-sex couples can also adopt children (see Adoption by Gay and Lesbian Parents). In cases of same-sex divorce, child custody is treated as it would be in any heterosexual marriage. However, in all other states which do not allow same-sex divorce, custody of children arising from same-sex relationships is not as clear and is ultimately based on the best interests of the children. (see Non-Parent Child Custody)
Do I Need a Lawyer for my Same-Sex Divorce?
The legal process of divorce is complicated and involves many issues. Additionally, same-sex divorces are a new and changing area of law. An experienced attorney can help ensure that your rights are protected. If you are a same-sex couple who does not meet the criteria for a same-sex divorce in Massachusetts, an attorney can advise you of other options that may be available.
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Last Modified: 11-15-2013 10:50 AM PST
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