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by Marilyn B. Chinitz
Blank Rome LLP

The harm to same-sex couples who cannot marry in the United States is real, not abstract. While we are seeing positive developments and more states permitting same-sex marriages, there are still many couples stuck in less tolerant states.

One of the issues that arises is what happens when these same-sex couples break up and decide to divorce. Many same-sex couples who are married or in civil unions or registered domestic partnerships may not be able to get divorced. What happens to these couples who are validly married in the state of celebration but move to a prohibition state? This issue exists because of Section 2 of DOMA, which was not overturned by the recent ruling in United States v. Windsor.

DIVORCE IN PROHIBITION STATES POST-WINDSOR

As the recognition of same-sex marriages is prohibited by constitutional amendment and statute in many states, courts will not recognize a marriage in order to provide jurisdiction for a divorce. This has obviously led to significant issues where a couple validly married in another state moves to a prohibition state and wants to be divorced.

There are several potential outcomes to this problem. One is that the couple cannot divorce based on state’s refusal to recognize marriage due to statute or constitutional amendment. 

A second is that annulment may be a possible solution. The Court may grant a legal annulment based upon either the (i) inability to marry at the time of the marriage; or (ii) fraud in the contract of marriage. In Atwood v. Riviotta, 2013 Ariz. App. Unpub. LEXIS 567 (Ariz. Ct. App. 2013), the parties, both female, were Arizona residents who were married in California in 2008 when same-sex marriages were valid in the state. In October 2011, Atwood filed a petition for an annulment in Arizona arguing that the marriage was void under Arizona law. Riviotta did not respond to the petition or a subsequent application for default. The superior court denied the petition and dismissed the case, finding it lacked authority to annul the parties’ California marriage because same-sex marriages are not valid in Arizona. Atwood appealed. The Court held that the lower court had the authority to grant Atwood’s petition to annul and to divide the parties’ property under annulment. The Court found that the parties’ California marriage was void in Arizona. However, it disagreed with the Superior Court’s conclusion that it could not annul the California marriage because it would first have to recognize the marriage as valid. According to the Court, an action to annul is based on the premise that the marriage is void. It is not likely that every court would make the same decision with respect to an annulment.

There are some Courts in prohibition states that allow couples to divorce. In State v. Naylor, 330 A.W.3d 434 (Texas App. Austin 2011), although in a prohibition state, the Court granted the parties a divorce. After a lengthy hearing regarding property division and the modifications of the parent-child relationship, the parties settled at the urging of the trial court. The agreement was read into the record and the trial judge stated “the divorce is granted pursuant to the agreement you have recited into the record.”

Another potential solution to this problem is to file for divorce in the state where the parties were married (i.e., attempt to divorce in a “friendly jurisdiction”). California, Delaware, Minnesota, Vermont and Washington, D.C.permit marriage dissolution in their jurisdiction if the marriage was celebrated in that state and neither party resides in a state that will recognize and dissolve their marriage.

Additionally, the parties could move to a same-sex marriage jurisdiction, establish residency, and file for divorce (one year of continuous residency in New York if married in New York or parties lived in New York together; or either party has been a resident for two years immediately preceding the commencement of the action. DRL § 230). Many other states require six months.

Given the foregoing complexities, ambiguities and uncertainties, non-traditional families and couples need greater protection particularly while DOMA and non-portability laws remain in effect in other states.

While many may feel discouraged by the failure of states to recognize same-sex relationships and marriages in the United States, keep in mind that we also have a global responsibility to make changes to protect citizens all over the world.

In some countries the hostility toward gay rights movements and to homosexuality more broadly, is shocking and horrific. In Russia, for example, a bill was recently proposed which would stop the ability of LGBT parents to retain custody of their children by making the “fact of nontraditional sexual orientation” a basis for denying custody. If the proposed bill is signed into law, it would essentially equate homosexuality with child abuse and drug addiction.

Consensual same-sex relationships remains a crime in at least 76 countries according to a United Nations released report:

  • In Uganda, there are laws that carry sentences for homosexuality ranging from 14 years to life imprisonment.
  • In Burundi, there is a law outlawing homosexual activity with prison sentences for the convicted ranging from two months to three years.
  • In Iran, under the penal code of the Islamic Republic of Iran, death is a potential punishment for homosexuality. Kissing another man or woman in public may result in beatings or “lashes”. Iran’s penal code, which was updated in May 2013, criminalized homosexual identity, rather than specific acts, making it punishable by 31-74 lashes.
  • Qatar considers homosexuality a criminal offense punishable by up to seven years in jail (or a life term when one of the parties is under 16 years of age).

America needs to lead the way; each and every state must provide for marriage equality. We need to show the world that we are indeed a “united” country, who provides its citizens equal protection and benefits and uniform marriage equality.