The June 2015 ruling of the Supreme Court in the case of Obergefell v. Hodges made same-sex marriage the law of the land in the United States. It also enshrined a less discussed but equally important right into American law, Divorce Equality. Prior to this decision, married same-sex couples did not have a legal path to divorce in all 50 states.
Previously, residency was the greatest hurdle to same-sex couples seeking to get divorced. Couples who moved from a state where same-sex marriage was legal to a state that did not allow it would find their marriage no longer recognized. If their marriage came to an end, they would also find that they would not be able to file for divorce in local family courts. Since same-sex marriage was not part of state law, courts had no process in place to handle same-sex divorces. Couples who crossed state lines to get married and then sought a divorce in their home state also ran into this problem. This left some couples “wedlocked” and unable to get divorced.
Residency is an important issue in all divorces which is often taken for granted. While many states allow visitors to get married, nearly all states have a minimum residency requirement that must be met before a person can file for divorce. In most states, this requirement is six months and must be verified by documentation or the sworn testimony of a witness.
Seeking a divorce in a state that recognized gay marriage was not an option for most same sex couples. Moving to another state for six months to establish residency would be a hardship for any person. Interestingly, the few states with shorter residency requirements were also much slower to pass same-sex marriage legislation, some only legalizing it after the Supreme Court decision.
The patch work of same-sex divorce laws also created many other legal questions that thankfully have now been resolved by the Supreme Court’s decision. For example, what if a divorcing couple was separated, one spouse living in a state that recognized same-sex marriage while the other spouse lived in a state that did not? What if the couple owned property in different states, including states without same-sex divorce? Would the orders of the divorce court have equal weight in those states? What if the children of the marriage lived in a state without gay marriage laws, would child custody be enforceable?
Clearly a single legal standard across all states regarding same-sex marriage and same-sex divorce resolves many legal problems before they start. National divorce equality allows all couples the equal right to divorce in the United States.