State bans on same-sex marriages prevent right to divorce

On behalf of Lake Toback Attorneys

Marriage equality will be a reality for Illinois residents in June 2014, but same-sex couples should take notice of marriage laws in other states before relocating. As one Mississippi couple discovered, states that don’t recognize civil union or same-sex marriage can also refuse the right to pursue a divorce.

In 2008, the couple traveled out of state to be married in San Francisco. One of the women, a 51-year-old mother of two, later filed for divorce, and her petition was recommended for dismissal by the Mississippi Attorney General’s office because state law considers same-sex marriages to be “null and void.” By seeking an official divorce, reports say the woman hopes to force Mississippi lawmakers to recognize her marriage.

Mississippi’s ban on same-sex marriage was voted in by an 86-percent majority in 2004. Without a valid union, same-sex partners can be blocked from legal proceedings involving child custody, divorce, property division, health insurance and even remarriage in another state. The woman believes the divorce dismissal violates her human rights and creates unnecessary financial burdens. Rather than visiting a nearby courthouse, many same-sex couples are reportedly challenged by limited legal options, such as moving to a marriage-equality state long enough to qualify for divorce.

Only 16 U.S. states have enacted marriage-equality laws, and cases of divorce have been handled inconsistently in states with bans. For example, a Wyoming couple had a district-level denial of divorce overturned by the state Supreme Court. In another case, a Texas Supreme Court decision granting one couple’s divorce was overruled by the Texas Attorney General.

In the Mississippi woman’s case, filing for divorce in another state many not validate claims to the marital property she obtained in Mississippi, which includes a home purchased with her former partner. For same-sex couples facing similar obstacles, working with a family law professional may be helpful in making marriage dissolution plans that protect both partners.

Source: Toledo Blade, “In some states, gays fight for right to divorce“, November 27, 2013

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State bans on same-sex marriages prevent right to divorce