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Gay Divorce Looms as Next Legal Challenge

By L.K. Regan

A Dallas appeals court ruled this week that gay men can't get... divorced. Two gay men, known in court documents as H.B. and J.B., married in Massachusetts in 2006; they have since sought a divorce in Texas, where they now live. A district judge earlier ruled that the men could legally divorce on the grounds that the state's ban on gay marriage violated the equal protection clause of the constitution. This week, however, a Dallas appeals court reversed that judgment, leaving J.B and H.B stuck in marital limbo. And this couple is, unfortunately, far from unique.

J.B. and H.B.'s problem is becoming increasingly common as more states allow gay marriage—or enshrine in law a refusal to recognize such unions. By tradition, states will honor marriages conducted in other states. But gay marriage has proven the exception to that rule. With all the focus on where we can and can't marry, many have overlooked the question of where and how we can divorce. It turns out, getting out of a gay marriage can be a lot harder than getting into one.

The problem is the chaos of the individual states' laws. In California, gay marriage is illegal, thanks to Proposition 8. But there were a few brief months when people were permitted to marry in the state, in the time between a state supreme court decision legalizing gay marriage and the passage of Proposition 8 reversing that judgment. The 18,000 or so gay couples married in that time naturally include some who have not made it (or who married in haste, knowing they had only limited opportunity), and who now seek divorces. These are slowly making their way through California courts. Or consider Maryland, which does not perform gay marriages, but in February began recognizing those conducted elsewhere—including in the neighboring District of Columbia, where gay marriage is legal. Does this mean that Maryland will be conducting gay divorces? Probably—but not necessarily.

In short, when a gay marriage winds up in court outside a gay marriage state, the process is likely to be slow, expensive and uncertain. "Be careful what you ask for," Washington, DC attorney Lawrence Jacobs, who both counsels gay couples interested in marriage and was himself legally married in Connecticut, told CNN. "When you break up, you may have a nasty fight in a court with no rules." Because Jacobs lives in the District of Columbia, which allows gay marriage, he should have no problem if he were to want to get divorced, even though his marriage was performed in Connecticut (before it was legal in D.C.).

But consider the example of the lesbian couple married in Massachusetts in 2009 who petitioned a Pennsylvania judge for a divorce and were denied this spring. They may still be able to get a divorce—but only by profoundly compounding the cost and disruption already inherent in ending a marriage. In general, gay marriage states will allow non-residents to marry, but they only grant divorces to their own residents. This is the case in Massachusetts, which has legal gay marriage—but is also the situation in, for example, New York, which does not perform its own gay marriages, but honors those performed elsewhere. So, if you marry in Massachusetts and remain there to live, you can get a divorce there. Or, if you marry in Massachusetts and live in New York, you can divorce in New York. But if you are living in a state other than the one you married in, or that does not recognize gay marriages, you or your spouse will have to move to a gay-marriage-recognizing state to establish residency. And that takes six months to a year, depending on the state. That's a year of lost time before the divorce proceedings can even begin.

There are five states plus the District of Columbia where you can have a gay wedding; but what if you're looking for a gay divorce? Try checking out Equality California's excellent overview. For info specifically on gay marriage mecca Massachusetts, see GLAD's info sheet.