Divorce and Separation

Thursday, December 29, 2011

District of Columbia Considers "Same-Sex Divorce" Bill

As reported by the Washington Post, District of Columbia council member Phil Mendelson has introduced a bill with the support of 13 other council members that would allow same-sex couples who were married in the District and later moved away to obtain a divorce without meeting the District's six-month residency requirement.  The "Civil Marriage Dissolution Equality Amendment Act of 2011" was introduced in October, 2011, and has yet to be voted on.

The importance of divorce should not be underestimated.  While marriage provides countless benefits to gay and straight couples alike, divorce provides both parties in a relationship with the protections and benefits of an orderly division of property, assets, and debts, and promotes the fair and equitable treatment of both spouses.

Most states have residency requirements which attempt to prevent divorcing couples from 'shopping around' for the most favorable place to dissolve their marriage.  These residency requirements encourage divorcing couples to litigate their disputes where they actually live.  But unlike opposite-sex couples, married same-sex couples can only divorce in one of the handful of states that recognize their marriage.  This creates an unintended hardship on married same-sex couples, who are denied the right to obtain a divorce in their state of residency and by the state that granted their marriage in the first place.

Many states do not have legal mechanisms for same-sex divorce, leaving divorcing couples who married in the District but now live elsewhere in a bind. Washington-based family law attorney Sebastian Krop said that for many couples wishing to divorce, returning to the District to wait out the residency requirement isn’t an option.

Massachusetts, which recognized the right of same-sex couples to marry in 2004, has a one year residency requirement for couples who wish to divorce.  Our office frequently gets calls from married couples throughout the country who are unable to obtain a divorce in their state of residency, and who now seek to return to the place of their marriage to obtain a divorce.  Most are unwilling or financially unable to uproot their lives and return to Massachusetts to meet the state's one year residency requirement.

From state to state, same-sex divorce laws are a patchwork or nonexistent. For instance, a couple who married in the District but are separated in Virginia — a state that does not recognize same-sex marriage — would not meet residency requirements for divorce in the District.

Robin Maril, legislative council for administrative advocacy for the Human Rights Campaign, said that many early versions of same-sex marriage legislation didn’t provide for divorce. An easier process to complete divorce should be added, she said.

Until each and every state recognizes same-sex marriage, this dilemma represents another undue and heavy burden on LGBT couples and their families.  I propose that the Massachusetts legislature modify Massachusetts General Laws Chapter 208 Sections 4 and 5 to allow same-sex couples who were married here in Massachusetts, and find themselves barred from obtaining a divorce in their current state of residency, to obtain a divorce here in Massachusetts.

Until such a change occurs, same-sex couples who are thinking of becoming married here in Massachusetts should sit down with an attorney who focuses in LGBT legal issues, including LGBT family law, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth.

Read the full text of the proposed Bill here:  Civil Marriage Dissolution Equality Amendment Act of 2011.




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