While some same-sex couples celebrate recent changes in the law recognizing their right to marry, others are faced with obstacles in court, as they seek the right to divorce. In the wake of United States v. Windsor, in which the U.S. Supreme Court struck down parts of the federal Defense of Marriage Act as unconstitutional, cases in which same-sex couples seek recognition of their marriages from states that do not recognize them, are on the rise.
According to the New York Times, a Mississippi couple has filed a petition in a Mississippi county court, seeking the state's recognition of same-sex marriage, a step that is necessary in order for the couple to obtain a divorce. The couple married in San Francisco, California, before separating in 2010, at which time they lived together in Mississippi.
Counsel for the woman filing for the divorce explained that a decision to move forward with the divorce in Mississippi wouldn't grant same-sex couples the right to get married in Mississippi, but it would mean that same-sex marriages from other states would be recognized. The attorney explained that a ruling in his client's favor would not mean that same-sex couples could get married in Mississippi because the state bans same-sex marriage.
While some may view this case as an attempt to extend rights of same-sex couples to marry in a state that currently bans these marriages, the attorney stated, "My client is not looking to start gay marriage in Mississippi. She wants the marriage from another state to be recognized so she can get a divorce and protect herself." The woman is particularly concerned with the ability of her children from a previous relationship to inherit in her will, instead of the spouse she seeks to divorce. If she were to pass away while still married, her wife may be automatically entitled to certain assets from the estate, depending on state law.
California law provides an exception to the residency requirement for same-sex couples
In California, a marriage cannot be dissolved by the court unless one of the parties to the marriage has resided in California for at least six months. However, California law provides an exemption for same-sex marriages, such that where both parties reside outside of California, a divorce can be brought before a California court as long as the marriage took place within the State of California, and neither party resides in a jurisdiction that will dissolve the marriage.
While this exemption seems to provide an ideal solution for the couple that ultimately filed in Mississippi, the couple's ability to obtain a decision on issues like alimony, children, debt, and property ownership was at stake. When the subject of the dispute is located in a state other than the state granting the divorce, a decision regarding it often can't be granted by the state. Therefore, a California court may not be able to divide a marital home with a Mississippi address.
Same-sex couples seeking a divorce are faced with many challenges as the legal system evolves. Choosing the right venue in which to file your divorce is a decision that should be made with great care, and with the assistance of an experienced attorney.