Want To Get Divorced As A Gay Couple? Think Again.

by Kitchens New Cleghorn LLC on November 13, 2013

(US family law & general) When the Supreme Court struck down the Defense of Marriage Act, it was a landmark event for the entire country. The federal government finally recognized same-sex couples as equal in the eyes of the law. Many hoped that this would lead to legalization of same-sex marriage in state after state – a process that is still far from over. And unfortunately, it is not just the act of marriage that is proving troublesome for this community.

We Can’t Get Divorced

In a surprising offshoot to the struggle for same-sex marriage, numerous married couples are now discovering that divorce may be even harder to obtain than the original marriage. Texas – predictably – denies both same sex marriage and same sex divorce, according to Slate (1). However, according to the publication, married couples are now finding out that the state they live in does not even have to ban gay marriage to deny them a divorce. It can often just be a matter of residency.

According to Today.com, the most recent states to legalize gay marriage were Minnesota and Rhode Island – bringing the number up to paltry 13 states (2). This means that many same-sex couples now married had to travel to a different state from their home to get a marriage license. Everyone has heard the stories of couples sometimes traveling thousands of miles to be married. What most people do not realize – even those that got married – is that their states will not only deny marriage, but divorce as well.


When a married couple realizes that they cannot get divorced in their home state due to outdated marriage laws, they begin considering other options. What about hopping over to the state that they were married in and filing for divorce there? Unfortunately, every state requires residency status for at least one spouse before it will grant a divorce, says Salon (3).

Gaining residency is not usually difficult, as long as one has time. Some states require six months of living there to be considered a resident. On the surface, this appears reasonable. But as anyone who has ever gone through a divorce or talked to a divorce lawyer knows – six months can seem like an eternity when going through a divorce. And even if these couples were getting along and had the time, how many have the finances to simply pick up and move to a new state?

The Complications

Not being able to get divorced is not just a matter of emotional difficulties. There are very real problems that come from an unwanted marriage. The financial obligations that bind a marriage together can create serious difficulties when couples no longer want to share everything.

If one partner dies, the other will inherit everything in absence of a will. Even with a will, the old partner can still demand spousal election – a portion of the inheritance that goes to him or her regardless of a new marriage. Each spouse is also prevented from entering into another marriage legally, as long as the current marriage is still considered valid.

A Real Problem

Couples who have the right to get married certainly should be entitled to divorce. The modern world recognizes well enough the need for divorce when marriage just is not working. Unfortunately, as with same-sex marriage, same-sex divorce faces an uphill battle to achieve the equal status it deserves.

  1. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/texas_and_gay_marriage_will_texas_refusal_to_grant_divorces_to_same_sex.html
  2. http://www.today.com/news/gay-couples-divorce-comes-extra-costs-6C10660976
  3. http://www.salon.com/2013/09/23/same_sex_marriage_needs_same_sex_divorce/


Kitchens New Cleghorn LLC
Kitchens New Cleghorn, LLC is a full service boutique law firm with a collective team of experts serving clients in corporate, business, family and employment sectors. The firm’s guiding principal is to create positive outcomes for our clients. With hundreds of years of combined legal expertise, our corporate and business clients rely on us to look around corners, anticipate the unexpected and partner with them to navigate through legal issues and challenges. From contract disputes, to articles of incorporation, to litigation, to regulatory affairs, to compliance, to strategic advice, Kitchens New Cleghorn, LLC offers a full suite of legal services so businesses can run smoothly and achieve objectives.
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