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SAME-SEX MARRIAGE AND DIVORCE IN NON-SAME-SEX MARRIAGE STATES

The number of states recognizing same-sex marriage is growing. The Supreme Court has just rendered two decisions which seem to keep the “same-sex” movement rolling. What happens in states where same-sex marriages are not recognized, when people who have been married in same-sex states want to divorce? The answer: Right now, no one knows.

Pending in Mississippi right now is a case where a woman who married her same-sex partner in San Francisco wants to divorce her partner in Desoto County, Mississippi. The case has been reported on recently by the Commercial Appeal of Memphis. I am quoted in the article as opining that there will not be a divorce due to the lack of recognition of same-sex marriage in Mississippi. I was also quoted as saying that this presentation of a same-sex marriage in another state for divorce in this state is unprecedented in my experience. What was not reported were my comments that our courts have equity jurisdiction to adjust property rights among non-married people where justice calls for it. Some times our courts will decline to do this if people chose not to marry, but other times they will do it. So, there may be a remedy for a same-sex married couple to resolve issues, even if they do not get divorced.

Nationally recognized legal expert Brett Turner of The National Legal Research Group of Charlottesville, VA, has provided a short and scholarly discussion of this burgeoning issue:
You are correct. The answer at this point is, no one knows.
A federal statute provides that the no state can be forced to recognize a same-sex marriage from another state. DOMA section 2, 28 U.S.C.A. section 1738C. The question is whether the statute is constitutional. DOMA section 3 just got thrown out 5-4 in Windsor. The opinion talks a lot about federalism, but the bottom line holding is (1) a statute which is enacted out of prejudice against gay people violates equal protection, and (2) DOMA was enacted out of prejudice against gay people.
That rationale applies just as much to DOMA section 2 as it does to DOMA section 3. A federal district court in S.D. Ohio, held in July that Ohio had to recognize a Maryland same-sex marriage, despite both an Ohio constitutional provision and an Ohio statute. Full discussion here: http://www.nlrg.com/family-law-legal-research/bid/95379/Windsor-Update-Is-DOMA-2-Next. There was utterly no Maryland domicile, the parties literally flew to Maryland, were married while the plane sat on the tarmac, and then flew back to Ohio. (One of the plaintiffs had Lou Gehrig’s disease, it was a very sad case factually.) If Obergefell stands, it might mean that the federal government will ultimately force non same-sex marriage states to recognize same-sex marriages from other states.
It is not likely that all courts will agree with Obergefell, and it may not even survive appeal. Note: The ruling was on a preliminary injunction only, so it will be a while before the case goes up. Windsor talked a lot about federalism, and that suggests that DOMA section 2 is probably OK. This whole issue may turn on individual propensities of Supreme Court Justices.
My best guess is we will see another big split in the federal circuits and then another big Supreme Court case. It is not likely that State courts would recognize same-sex marriage unless the federal courts made them do it, and DOMA refuses to make them do it, but the constitutionality of DOMA is a very unsettled issue these days.
A practical issue is that until this is decided, same-sex married people who move to non same-sex states are in a difficult situation. They can’t get a divorce, and they can’t get divorced anywhere else because they don’t meet the residency requirement. DC recognized this dilemma and passed a special law to let anyone who was married there get divorced there, regardless of the residency requirement, at least if their home state doesn't recognize the marriage.
My ultimate opinion is that the tide is rolling and states will be forced by the shear volume of civil dilemmas caused by same-sex marriages from other states that they will have to relent and invent some way to deal with them, even if they don’t really want to recognize same-sex marriages.
Brett Turner is a Nationally recognized family law expert and is available for research and writing assistance to lawyers and others across the world. Contact him at bturner@nlrg.com.