No Designation

The Politics of Identity on the Edge

You can marry, but you can’t divorce

I was reading over an FAQ for the practicalities of getting married in California and stumbled upon a disturbing piece of information. It’s widely reported that the recent marriage decision in California does not create a residency requirement to get married. That means that someone could travel to California, get married, and go home. However, California DOES have a residency requirement for divorce. That’s where the trouble is.

If you’re home state doesn’t recognize your new marriage, then chances are they won’t allow you to get divorced there. Currently, the only other states you can be garunteed the right to divorce are Massachusetts (where same-sex marriage is also legal) and New York (which does not perform same-sex marriages but will recognize them). According to the FAQ, “States with civil unions or comprehensive domestic partnerships, like Connecticut, New Hampshire, New Jersey, Oregon, and Vermont, also may allow married same-sex couples to divorce, but each of those states [including Massachusetts and New York] has a one-year residency requirement.”

So what happens if you don’t live in one of those states and you and you’re partner are ready to leave your California-made marriage? Without moving to one of those states and waiting a year to gain residency — YOU CAN”T GET DIVORCED.

This has some obvious and serious legal repurcussions. And recognizing that abuse does indeed exist in queer communities, one can imagine the difficulties of not being allowed to divorce your abusive partner. Not being allowed to dissalow your abusive partner hospital visitation, medical power of attorney, or other such benefits of marriage.

Hopefully this is an oversight. Although, there certainly are those in this country who would like to see the right to divorce restricted. I sincerely hope that after all this work for marital equality, after finally getting the right to marry declared a universal right, that we won’t have to fight a similar battle for the right to divorce.

June 11, 2008 - Posted by nodesignation | Relationship Recognition | | 1 Comment

1 Comment »

  1. I understand why they have the residency requirement — otherwise people would simply run to the state that had the most favorable divorce laws for them personally and file papers when they wanted to leave their spouse (and this is speaking in general, not about any specific group of married people), as some folks are prone to, especially where there are kids involved (this latter one actually happened to me).

    Since it costs the state a lot for judges, courtrooms, clerks, filing, paperwork, etc., and since they only see filing fees from people who file a court case inside their state, there’s a pretty good reason for having the residency requirement to prevent costs from spiraling out of countrol, and to prevent a rash of people from dropping by a state to tangle up their court system with a decade and a half of family court hearings when they don’t even live there.

    I agree 100% that it’s a very complicated situation when it comes to marriages that are not universally allowed or accepted in all states. About the best that could be hoped for, unless you can get a ballot measure approved by the voters to change the law in California, would be to sue the state and hope that the courts here would see the problem and force the state to make an allowance for it. Frankly, I can’t see anyone really putting up a fight against it — those opposed to GLBT connections with marriage would likely be super-happy to let married GLBT folks get divorced as freely as possible! — but I still wouldn’t count on being able to get enough signatures for a ballot measure, much less enough votes to get it approved as a ballot initiative. I would bet, however, that if someone won the court case against the state law that it would not be challenged.

    Encouraging? Maybe not. But at least it exists as an option, and one that is likely viable, at that.

    Comment by Adam | August 29, 2008 | Reply


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