Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, July 5, 2011

Gay Divorce Part 2: The Permissibility of Same-Sex Divorce Nationwide

From the New York Times on same-sex divorce:

But Americans are a roving sort, and people who marry and move to places hostile to their union could find, in disunion, a legal limbo. A couple who marry in New York and seek a divorce in Texas could find themselves fighting not just each other but also Texas’ attorney general, Greg Abbott. He has tried to intervene in two same-sex divorces, arguing that if the state does not recognize the marriage it won’t recognize the divorce, either.

If blocked in Texas, the unhappy couple can’t head back to New York for a quick split either. New York’s same-sex marriage law does not require residency to wed, but the state does require residency of at least 90 days to obtain a divorce. A stay like that is out of the question for most people.

“Where can you get a divorce?” asked Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School. “The answer might be nowhere, perversely.”

Do a little reductio, and it’s not a long way to absurdum.

Margaret M. Brady, a lawyer in New York specializing in family law for same-sex couples, said that even those couples facing no extraordinary obstacles to divorce would find it a very different experience from that of heterosexual couples. Under New York law, the automatic division of property covers only assets acquired after marriage, not “premarital contributions” to things like real estate. Yet some of her clients were together 15 years or more before marrying. “It will be interesting to see if the courts will be willing to take into consideration those premarital contributions made at a time that the couple could not avail themselves of the privilege of marrying,” she said.

Same-sex divorce, of course, is not new. Massachusetts first allowed same-sex marriage in 2004 (and Vermont allowed civil unions in 1999). Some of the pioneer couples in such states have realized that connubial bliss isn’t. But the addition of New York, which, with 19 million people, is the third largest state by population, will add many new cases and conundrums. “There have been only a handful of cases on the topic, but that is sure to change,” said William C. Duncan, the director of the Marriage Law Foundation, which provides legal resources for those supporting traditional marriage.

Today, denying divorce denies justice, said Allen A. Drexel, a family law expert in New York with a large practice among same-sex couples. “The right to obtain a legal divorce is one of the most important, if least celebrated, rights of marriage,” he said. The process of separation can bring out the worst in people, he said, and “the incentives to game-play and to engage in forum-shopping to take advantage of the inconsistent legal treatment exists.”

Read the full piece here.


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Texas sounds a lot like Oklahoma. Legally speaking, the Oklahoma Court System does not recognize same sex marriage and therefore it will not grant a divorce to a same-sex couple.

Posted by: Divorce Oklahoma City | Jul 8, 2011 10:35:55 AM

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