Skip to main content

Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky

Same Sex Marriage Map from Wikipedia
this version by StephenMacmanus
Since 2004, same-sex couples have been allowed to marry in Massachusetts. A handful of states have followed suit and begun allowing gay marriage (namely, Connecticut, Iowa, New Hampshire, New York, Vermont, and the District of Columbia). Some couples have traveled to these states to obtain a same-sex marriage, even though their home state does not permit or recognize their marriage. Further, some same-sex couples that have married in states permitting their marriage have since moved to states that do not recognize their union.

What happens if these couples want to later dissolve their marriage?

A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states.  However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages.

The rationale behind not allowing same-sex divorce is that those states will not dissolve a legal relationship that they refuse to recognize as valid. For a same-sex married couple that married in Massachusetts but later moved to a state that, like Texas, which won't permit their divorce, obtaining a divorce may prove to be far more complicated than for their opposite-sex counterparts.

Massachusetts requires that parties to a divorce case must have lived together in Massachusetts, and one of the parties must still live in the state when the cause for divorce occurred. Alternatively, if the cause of divorce occurred in Massachusetts, or if one of the parties has lived in Massachusetts for one year, the state will be able to hear their divorce case. If a same-sex couple married in Massachusetts and later moved to Texas, they can't get divorced in Texas or Massachusetts unless they can meet these requirements in Massachusetts, which usually means moving to Massachusetts for at least some period of time.

On the other hand, an opposite-sex couple that married in Massachusetts but later moved to Texas would simply have to meet the jurisdictional requirements of Texas if one of them decided to file for divorce there.

This is just one of the ways that the Federal Law DOMA and the discriminatory enforcement of laws in some states relating to same-sex marriages continues to cause unequal treatment of these same-sex couples.

Should you have any questions about divorce, same-sex or otherwise, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a one hour initial consultation.


Popular posts from this blog

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an