When a Marriage Fails, Same Sex Legally Married Couples Might Not Be Able to Divorce

One of the rights we associate with marriage, is, when a marriage fails, the right to end that marriage.

At the same time that Illinois is on the brink of becoming the fifteenth state to allow gay couples to legally wed, two Texas same sex couples are trying to find a court to grant them a divorce.

One of the significant problems a couple faces when they are married to someone of the same sex is that their marriage is not recognized in all fifty states.

In the Windsor decision the United States Supreme Court held that restricting the federal interpretation “marriage” and “spouse” — as contained in Section 3 of the Defense of Marriage Act (“DOMA”) — to apply only to heterosexual unions is unconstitutional under the Due Process Clause of the Fifth Amendment.

The Windsor decision allows legally married same sex couples to receive all the federal benefits given to heterosexual spouses. The decision did not, however, go so far as to require that all states allow same sex couple to marry, or even that all states recognize the marriages of same sex couples who are legally married in states that do recognize marriage equality.

This means that the marriages of couples who were legally wed in a state like Connecticut are not recognized when they move to — or even just visit — a state such as Texas. This could impact their ability to do things that married couples are entitled to do, such as make certain medical decisions for each other, inherit from their spouse if she has not executed a will, or even obtain a divorce.

(For same sex couple clients we often recommend executing certain legal documents that attempt to memorialize their intentions and relationship. These documents and their contents might be recognized in states that do not recognize the couple’s marriage.)

Individuals going through a divorce must struggle through the emotional impact on themselves and their families. Sometimes they also experience an antagonistic and protracted dispute over the division of the marital property or over custody and visitation of children. But, when a marriage fails, most people at least know that divorce is an option legally available to them.

The two Texas couples seeking that the Texas Supreme Court allow them to obtain a divorce in Texas despite the state ban on gay marriage were both married in Massachusetts but live in Texas. The Texas Attorney General argues that gay couples can’t be divorced in Texas because the state bans gay marriage. “There is no way to grant a divorce without recognizing a marriage,” James D. Blacklock, deputy attorney general for legal counsel, argued before the court Tuesday.

Because the Texas couples do not live in Massachusetts — even though Massachusetts recognizes their marriages — its courts don’t have jurisdiction over their divorces.

Legal planning can assist same sex couples couples in attempting to grant their spouse rights and authority in states that don’t recognize their marriage, but until their marriages are recognized by all states, they will still struggle with at best, legal uncertainty, and at worst, being treated as though they were strangers.