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Same-Sex Divorce

Same-sex marriage is currently recognized in six U.S. states, and the District of Columbia.  Also, there is no minimum residency requirement in these states for same-sex couples who want to marry.  The practical effect of this situation is that many couples can simply travel to these states to get married, and then return home.  However, the situation gets a little more confusing when those same couples decide to part ways down the road.  If a same-sex couple’s relationship falls apart in a state that does not recognize same-sex marriage, the question becomes, will that state allow the couple to obtain a legal divorce?

Regardless of what state these couples reside in, they may be encountering the same difficult issues as heterosexual couples when a relationship ends.  They will have questions about how to divide their property, how to support each other, and how to deal with child custody issues.  Often in same-sex relationships, a child may be biologically related to only one parent, though both parties have jointly raised the child since its birth.  This makes matters very complicated when same-sex couples separate, and may leave the non-related parent in limbo regarding his or her rights to visit with the child.

North Carolina voters recently passed a constitutional amendment that defines marriage as solely between a man and a woman, making it the 30th state to pass such a constitutional amendment banning gay marriage.  As same-sex marriage was already illegal in North Carolina, the effect of this constitutional amendment is still unclear.  What remains even more unclear is the remedies available to same-sex couples that were married in a state that recognizes gay marriage, and now hope to legally divorce.

In a recent case, a same-sex couple residing in Maryland, who were married in California, sought to obtain a legal divorce.  While a county court initially denied the couple a divorce as violating public policy, the Maryland Court of Appeals overturned the decision and ruled that same-sex couples who were validly married in a state that recognized such marriages could obtain a divorce in Maryland.

Another option for same-sex couples who seek to legally divorce, may be to petition for a divorce in the same state in which they were married.  In January of 2012, a California court ruled that same-sex couples that were legally married in California may seek a divorce in that state, regardless of where the couple resides.

As more and more same-sex couples take advantage of the right to marry, it stands to reason that the predicament surrounding same-sex divorce will continue to grow; however, without the knowledge or resources to pursue a litigious divorce, same-sex couples may opt out of the marriage track to avoid being trapped in an unhappy marriage.  This potential chill on same sex marriage reveals that the battle to equalize, and divorce, is far from over.

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