Friday, July 1, 2011
Nick Tarasen has posted "Untangling the Knot: Finding a Forum for Same-Sex Divorces in the State of Celebration" (forthcoming Univ. of Chicago L. Rev.) on SSRN. Here is the abstract:
Same-sex couples with marriages or civil unions living in states hostile to their relationships may lack access to any court procedures to declare them divorced, leaving them indefinite legal limbo. This comment proposes and defends a new solution to provide these couples with access to divorce: divorces in the state of celebration of the marriage or civil union.
The difficulties that same-sex couples face in accessing divorce results from two factors. First, “hostile,” states such as Texas refuse to recognize same-sex marriages, even for the limited purpose of dissolving them. Second, Supreme Court precedents suggest that domicile is a constitutional prerequisite for personal jurisdiction over a divorce action (the so-called, "domicile rule"), thus largely preventing same-sex couples from traveling outside of their home states to obtain divorce decrees.
The existing literature on this topic has focused entirely on encouraging hostile states to recognize same-sex relationships, at least for the limited purpose of dissolving them. This comment contends that such a strategy is unlikely to provide a remedy in the foreseeable future. Instead, this comment suggests that each friendly state can allow same-sex couples who can obtain marriages there (the, “state of celebration”) to return to obtain a divorce, even if neither spouse still resides there. This solution has already been legislatively adopted in civil union/domestic partnership statutes in California, Delaware, Illinois, and Oregon.
However, the domicile rule may cast serious doubt on the validity any dissolutions granted under these statutes, because jurisdiction over these dissolutions would not be founded on domicile. This comment suggests that a limited exception to the domicile rule, for divorces performed in the state of celebration, is consistent with constitutional constraints on personal jurisdiction when the couple’s domicile refuses to recognize their marriage. It argues that while states may once have had an interest in regulating the divorces of their citizens (interests which originally undergirded the domicile rule), such interests are not offended by these divorces. In particular, it argues that states flatly refusing to recognize same-sex marriages cannot simultaneously assert any interest in preventing same-sex couples from being divorced elsewhere, nor in applying their own substantive law to govern such actions.