Imagine being stuck in a bad marriage, ready to move on with your separate lives but unable to legally divorce. Sounds like a nightmare, doesn’t it? Unfortunately, for many same-sex couples, this nightmare is an everyday reality.
“As with other couples, some same-sex couples break up and decide to divorce. However, many same-sex couples who are married or in civil unions or registered domestic partnerships may not be able to get divorced,” states The National Center for Lesbian Rights in their guide for attorneys seeking information about same-sex divorce.
The problem? Same-sex spouses who marry in one of the 32 states allowing same-sex unions, then move to a “non-recognition” state, often face legal hurdles when they try to divorce.
The recently publicized case of Heather Brassner, a Florida woman trying to dissolve her Vermont civil union, shows some of the barriers facing same-sex couples living in states that don’t recognize their marriage, civil union or domestic partnership. In Brassner’s case, she and her former partner entered into a civil union in 2002, a full seven years before same-sex marriage became legal in their state of Vermont. In 2010, the couple went through a rough break-up and Brassner’s partner disappeared. Now living in Florida and dating another woman, Brassner is seeking to dissolve her civil union. But Florida doesn’t recognize same-sex unions and has blocked her request. Most recently, Florida Attorney General Pam Bondi intervened in the case and asked that Broward County Judge Dale Cohen not grant Brassner’s divorce.
The last thing a divorcing couple needs is another hoop to jump through, but, according to the NCLR, same-sex couples facing situations like Brassner’s often have alternative routes to divorce: “For couples who cannot dissolve their unions in the state where they live, there may be creative solutions to end their relationships.”
These “creative solutions” have included filing a more expensive civil suit to end the marriage and appealing to higher state courts. Two cases involving same-sex couples hoping to obtain divorces in Texas, which does not recognize same-sex marriages as valid under state law, have made their way to the Texas Supreme Court. Unfortunately, both of these solutions are far more costly economically and emotionally than simply proceeding with your state’s regular divorce proceedings.
Here are a few important things to know if you are in a same-sex marriage, civil union or domestic partnership and contemplating divorce:
Some states make it easy to divorce, even if you’ve moved to a non-recognition state. For instance, if you married in either Delaware or Minnesota, these states have given their courts the power to authorize divorces for same-sex couples who married in one of these states but have since moved to non-recognition states.
Your legal status makes a difference. Due to the patchwork system of same-sex marriage laws in the various states, same-sex couples often have more than one relationship status. For instance, a same-sex couple may be in a marriage, civil union, domestic partnership and/or limited domestic partnership or a combination of any of these relationship statuses. Make sure that your divorce dissolves all legally binding relationship statuses related to your marriage. For instance, in some cases, same-sex partners living in non-recognition states chose to enter into a cohabitation agreement and then, when their state recognized the legality of same-sex marriage, chose to also enter into a marriage. When they divorce, some states consider the cohabitation agreement like a form of a prenuptial agreement. But other states consider it a legally binding agreement regardless of the subsequent marriage.
Developing a co-parenting plan can be tricky. It is common for same-sex couples to live with children who are the biological child of one partner and for the other partner to then adopt that child as his or her own. However, as is the case with same-sex marriage, some states still do not allow same-sex partners to adopt their partner’s biological child or for both parents to jointly adopt a non-biological child. The good news is that it is still possible albeit a little more difficult to craft a parenting agreement that will give both parents adequate time with the children, even if the non-biological parent is not considered a legal parent under state law. For a map of state laws regarding joint and second-parent adoptions, visit the Human Rights Campaign‘s Maps of State Laws & Policies.
Getting a same-sex divorce doesn’t have to be a nightmare. But you need to know what the laws are in your home state before you dive in. Your attorney should be able to guide you through this process, but for more information, visit the following sites:
Gay and Lesbian Advocates & Defenders (GLAD)
The National Center for Lesbian Rights
