President Obama threw his political weight behind the movement for gay marriage on Wednesday, telling ABC's Robin Roberts, "I've always been adamant that gay and lesbian Americans should be treated fairly and equally." Obama's support brings gay rights proponents one step closer to the dream of equality in marriage, but it also raises important questions about the legality of gay divorce.
At present, even if a same-sex couple has been married in a state that permits gay marriage, it is often legally impossible for that same couple to get a divorce. Take the case of New York native Karen Hartman, who in 2000 traveled with her girlfriend to Vermont to enter into a civil union. The ceremony happened at sunset, the brides wore white, and the future was full of promise. Afterward, the couple returned to New York, and four years later they decided to divorce. At the time, however, New York did not recognize same-sex marriages, and therefore the state was unwilling to dissolve their union. As Ms. Hartman put it in a New York Times article written last year, the two were "in a legal limbo that held us in our union by not recognizing it."
There are currently six states, plus Washington, D.C., that allow same-sex couples to marry: Massachusetts, Iowa, Connecticut, New Hampshire, Vermont, and New York. To date, roughly 150,000 same-sex couples report having gotten hitched. These are happy beginnings, but the lack of nationwide uniformity on the issue has created problems when it comes to endings. If a gay couple live in a state that allows gay marriage and decide to end their relationship, things are simple. They can do what any other set of unhappy marrieds would do and get a divorce, complete with all the legal and organizational assistance a divorce implies. If, however, they have since moved to a state where gay marriage is not allowed, they will find themselves at the mercy of circumstance. Some states, like Texas, flatly declare that they will not grant divorces to gay married couples. Texas has a firm policy against homosexual marriage, and their courts reason that to grant a gay divorce would be tantamount to recognizing the existence of a gay marriage in the first place. Other states, like Wyoming, have elected to grant gay divorces even if they do not allow gay marriages, reasoning that forbidding the one does not mean they cannot grant the other. This is the state of gay divorce in America today: a ruddy patchwork trap for the unaware.
Why, you might ask, do gay couples caught in this trap not simply return to the state where they were married to get a divorce? The reason has to do with residency requirements. Though the details differ place by place, the great majority of states require that at least one member of a couple live in the state for a specified period of time before being allowed to file for divorce. California requires a stay of six months. In Connecticut, it's a year. Even Nevada, land of the quickie divorce, has a waiting period of six weeks. The options for divorce-bound gay couples, then, are stark: move to a new state and wait until eligibility kicks in, or stay put and remain married to your ex.
The litigation surrounding gay divorce is still very unsettled, but a few courts in states like Indiana and Pennsylvania have suggested that, instead of granting divorces to gay couples who ask for them, courts should void gay marriages in their entirety, making it as if they never existed. This solution would, in theory, free both partners to remarry, but it comes front-loaded with its own set of problems. For one thing, getting a marriage declared void often means the parties won't have access to the helpful bells and whistles that come with divorce. In Indiana, for example, a declaration of voidness prevents a judge from dividing property, allocating custody, or providing other help that would be allowed were it an ordinary divorce. For another thing, there's no guarantee that declarations of voidness will be recognized outside the state where they're granted. Imagine going through all the trouble of getting a legal separation, moving to another state and discovering that, under the law there, you're still married. It's frustrating, it's expensive, and it's very awkward to explain on dates.
Outside the courts, enterprising legislatures in California and Washington, D.C. have stepped up and passed bills that allow same-sex couples married in those states to return and receive divorces, even if they do not meet the residency requirements. These laws are a step in the right direction, but in the end they're Band-Aids on a gunshot wound. Gay couples lucky enough to have been married in those locales have to suffer through the inconvenience of filing for divorce in a place they no longer live, and those married elsewhere have to navigate a dense legal thicket that only promises to get knottier and more complicated as time goes on.
This raises some very inflammatory questions. Should the right to divorce be considered a fundamental right guaranteed by the Constitution? Can same sex couples ever truly enjoy equal marriage rights if they don't enjoy equal divorce rights? And what does it say about the institution of marriage in 2012 that a marriage is considered incomplete unless it is accompanied by the right to divorce?
Dan Selcke, J.D., contributed research for this article.
Click through the slideshow below to read Twitter users' response to President Obama's endorsement of same-sex marriage:
