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The Legal Hurdles of Obtaining a Same-Sex Divorce

Constitution.jpgFive states and the District of Columbia now allow same-sex marriage and, consequently, same-sex divorce, but same-sex couples who wish to divorce in states that do not recognize their marriages are now facing significant legal hurdles. Many same-sex couples remain in marital limbo while states across the country are struggling to decide their stance on same-sex divorce.

Under the Full Faith and Credit Clause of the United States Constitution, states must generally recognize the laws of other states. For example, opposite-sex marriages and divorces are recognized when a heterosexual couple moves across states lines. However, most states that do not allow same-sex marriage will similarly not recognize a same-sex marriage performed in another state. Some states, like North Carolina, do not allow same-sex marriage and will not legally recognize a same-sex marriage performed in another state. Thus, opponents of same-sex divorce say that allowing these couples to divorce means acknowledging that the marriage was legal initially.

Today, the lesson to be gained from the current debate over gay divorce is that these couples who are legally wed in one state should be careful regarding the state to which they choose to relocate. Under the laws of many states, it takes at least a year to establish residency before filing for divorce. A couple that is refused a same-sex divorce in a state that does not recognize same-sex marriage would have to relocate to reestablish residency in the state that granted their marriage license, which would only further complicate and significantly delay the process.