Same Sex Divorce- Available in New York, Questionable Elsewhere
While more states are allowing same sex marriage, obtaining a same sex divorce may be problematic. Though the District of Columbia and five states have legalized same-sex marriage, CNN is reporting that some states, which do not recognize same sex marriage explicitly ban same divorce or will not even recognize the validity of the marriage.
Though New York will not allow same sex marriage, it will recognize, as valid, marriages performed in a state which allows same sex marriage. In those cases where New York recognizes the validity of same sex marriage, New York courts will permit same sex divorce. In fact, I have been fortunate enough to have represented successful same sex litigants seeking a divorce.
While all heterosexual marriages and divorces are recognized when a couple moves from one state to another, some states do not follow New York’s example, and will not recognize as valid, same sex marriages even if the marriage was lawfully entered into another jurisdiction.
In the states not performing sex marriage, the issue of same sex divorce creates a conflict- if the state doesn't recognize a marriage, then how could it dissolve it? If a state that outlaws gay marriage but grants a same-sex divorce, does that imply gay marriage is recognized? On the other hand, the denial of the same sex divorce locks the parties in a same sex marriage which the state opposes.
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Comments (4)
Read through and enter the discussion by using the form at the endHelen M. Dukhan - May 6, 2010 5:29 PM
The irony that you highlight at the end of this post is very interesting. In fact,at first I agreed with your conclusion that if a state does not allow same-sex divorce, because they do not recognize same-sex marriage, they are forcing a same sex couple to stay in a union that the state prohibits. However, really the state does not recognize their union and does not have to provide the same sex couple any benefits of such a union, so really they are not forcing them to stay married, as they are not recognized as married in the first place.
I have also represented a same sex couple in a divorce in the state of New York, and the fact of the couple being of the same sex was never brought up or even acknowledged by the Court, because they were legally married in a state that recognizes such a union.
You should check out the post on my blog at wwww.familyandmatrimoniallaw.blogspot.com - about the same sex marriage in Texas. You might find it interesting.
Until next time,
Helen M. Dukhan, Esq., LL.M.
Dan Clement - July 14, 2010 10:41 PM
Thanks for your comments.
I too have found there to be no difference in the way the trial courts handle same sex or opposite sex divorces, except that some of the forms, particularly the department of health form, must be updated because they only refer to husbands and wives.
shawn steele - January 10, 2011 2:39 PM
I am a married homosexual liveing in ny. got marrie in vermont what I dont get about this whole thing is why do we get judged all the time. My husband and I are haveing multiple problems in our relationship I think that ny needs to reconize and alow gay marriage its not fair that we have to live and stay un happy. I was told that to get divorced I would have to live in vermont for 6 months to file its not like I can just leave ny so I beleave that ny should still let same sex divorce even though we didnt get married in ny.
Daniel Clement - January 10, 2011 2:48 PM
Actually, you can be divorced in New York, provided the jurisdictional requirements are met. I have had some success in assisting same sex couples divorce.
Daniel Clement