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Gay Marriage and Gay Divorce: New Battlegrounds

Same-sex Divorce

What is currently happening with gay marriage in many states has caught the majority of the attention from the press.  However, a bigger question is looming on the horizon than how many states will eventually recognize same-sex marriage, and that is how states will handle divorces between these couples.  California has not yet made it clear how it will handle divorces in the wake of the Supreme Court’s recent decision to overturn the gay marriage ban, but it cannot be long before the courts must address these issues.

The Real Problem with “Gay Divorce”

The real problem with gay divorce is a lack of equity.  Gay married couples are simply not playing on the same legal field as heterosexual couples because their marriages are not recognized in every state.

As an example:  a gay couple married in Minnesota, where gay marriage is legal, moves to Virginia, where it is not yet recognized.  Now, the couple decides to divorce.  In Virginia, there is no legal option for them to do so.  In fact, unless one of the partners is willing to move to a state and create a residency so that he or she can file for divorce, the couple will remain in legal limbo, unable to separate assets or take the steps necessary to set up custody and visitation for the children that may be involved.

Why Can’t Gay Couples Get Divorced?

Whether or not a same-sex couple can divorce depends on the state in which they live.  States can take one of three positions:  (1) the state recognizes same-sex marriage and therefore allows for same-sex divorce; (2) the state does not recognize same-sex marriage but will grant a divorce for a marriage performed in another state; or (3) the state does not recognize same-sex marriage and therefore cannot grant a divorce.

California is currently working on catching up with not only the gay marriage rights issue but also the issue of terminating same-sex marriages legally and fairly.  It is likely that the same laws that apply to heterosexual marriages will be incorporated for same-sex marriage but with a few possible changes to address custody orders and other details.

For example, same sex couples composed of two males may not be able to address the “mothering” issues present in many divorces between heterosexual couples.  In these cases, judges may have to make a determination as to which man should be most responsible for the child’s upbringing.

Whatever the future of gay marriage and divorce holds, family law attorneys may be able to help those who need to find closure and settle financial and family matters through divorce proceedings.