Divorce Inequality: What Same-Sex Couples Should Know Before They Say “I Do”

Imagine you need to get a divorce, but at court you are told that you can’t because your state doesn’t even recognize your marriage. With a dozen states now permitting same-sex marriage – including Minnesota which joined the fold on May 14, 2013 – the unequal treatment of such marriages is poised to become more widely understood, in the context of divorce.

Let me explain: in my state, New York, where same-same marriage was signed into law in June of 2011, there is no residency requirement to obtain a marriage license.  Because New York recognizes same-sex marriages, couples can come here from all over the country and get hitched. And they have.

But, say that things go badly – as is the case with 50% of marriages today – those same couples who got married here may not be able to get divorced here. Why? Because while there is no residency requirement to get married here, New York does have a residency requirement to get divorced.

Watch me discuss why this complicates matters:

Worse yet: couples who reside in a state that does not recognize the legality of their marriage may not qualify for a divorce in their home state either.  Read more about this issue…

For couples seeking a simple divorce, with no kids or property, it may not be too difficult to move for a time in order to get divorced.  But for couples who have property, a job they love, or kids together, this creates a complete crisis: someone needs to move to a state where a divorce may be granted and live there long enough to meet the residency requirements.  How can we expect same-sex couples to suffer leaving their lives to move somewhere just to qualify for a divorce?

In New York, as in most states, the residency requirements for divorce basically ask: “How are you related to the state?”  In plain terms, the most commonly relied on residency requirements are:

1.  You and your spouse were married in New York State, and one of you resides in the State when the divorce action begins, and that person has lived in New York continuously for one year before the divorce action begins.

2.      You and your spouse lived in New York State as a married couple at any time during your marriage, and one of you currently resides in the State of New York and that person has lived in New York continuously for one year before the divorce action begins.

3.      Either you or your spouse has been a resident of New York State for a continuous period of two years prior to the start of the action for divorce.  (For example, if one spouse has resided continuously in another state or country, the spouse who has resided in New York for two years can seek the divorce in New York Courts.)

4.      The cause of the action for divorce occurred in New York and you and your spouse are residents here at the time of commencement of the divorce action.

While there are a few more options to meet residency, at a minimum the net effect is that to obtain a divorce in New York, one spouse may need to move here for at least a year.

Right now, the push to legalize same-sex marriage and do away with unfair legislation is reaching a tipping-point.  Minnesota is now the 12th State to legalize same-sex marriage. And earlier this year, the Supreme Court of the United States heard arguments in two pivotal cases regarding unequal treatment of same-sex spouses (in particular, one case mounts an attack on the Defense of Marriage Act that allows same-sex partners to be discriminated against by denying them federal benefits).

At the end of the day, the simple solution is federally recognized same-sex marriage so that couples in every state will receive the same treatment in marriage — and divorce.

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