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New Marriage Equality States Do Nothing to Solve the Problem of Same-Sex Divorce

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Laws governing LGBT marriage leave divorce difficult.

On election day last year, voters approved gay marriage in Maine, Maryland, and Washington states. Before that year, gay marriage had always lost when put to a popular vote. The popular vote victory indicated a shift in public support for LGBT rights and same-sex marriage. Then, this year Minnesota, Delaware, and Rhode Island joined the club.

However, the headache of gay divorce remains unchanged. While anyone, no matter where they live, can travel to one of the now 12 states that allow gay marriage and get married, gay divorce is only available to actual residents of those states.

I’m a Florida tax attorney and helping same-sex couples is a large part of my practice. Time after time I people come to me wanting to know how they can get divorced when they married in a different state. While there may be some risky legal procedures they can do, the simple answer is: they can’t. They got married, but there is literally nowhere they can get divorced. It is sad that our laws offer them no way out of the relationship.

Let’s say you live in Florida and take a trip to New York to get married. Statistically, you have a 50/50 chance that you will one day want a divorce. Yet for same-sex couples, you won’t ever be able to get divorced unless you or your partner moves to a gay marriage state for 6 months first. Since gay marriage in Florida isn’t recognized, they can’t get divorced in Florida, and they can’t get divorced in Washington state because they aren’t residents.

Most people can’t get up and move to a different state for 6 months just to get divorced, so they end up saying, “let’s just pretend the marriage never happened.” But that has its own risks, not to mention a continued personal burden of knowing that you’re still married to your ex-partner.

Not even the DOMA case currently being considered by the Supreme Court will make a difference. The provision in DOMA that allows states to ignore marriages from other states is not under review–instead, the Supreme Court is only looking at the federal government’s nonrecognition of state same-sex marriages.

Until legislatures follow the path of Washington D.C., which lets out-of-state same-sex couples get divorced even when they aren’t residents, gay couples from states without gay marriage will continue to take on an enormous risk when they travel out of state to get married. At least one state–Vermont—has done so. It’s time for other states to do so as well.

Photo by Kevin Wong released under a Creative Commons license.

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Gideon Alper

Gideon Alper