Same-sex divorce as a further legal hurdle

June 13, 2012

Six states and the District of Columbia now permit same-sex marriage.  But for non-resident couples who marry in one of those states, thorny legal issues remain if the marriage falls apart.

Just last month, Maryland joined the ranks of states that permit same-sex divorce in Port v. Cowan, 2012 WL 1758629.  Citing the doctrine of lex loci celebrationis, the Maryland Supreme Court reasoned that the state’s courts liberally recognizes foreign marriages so long as valid where performed, and not repugnant to state’s public policy or prohibited expressly by state law.  The court held that while MD Code, Family Law, § 2-201   provides that “[o]nly a marriage between a man and a woman is valid in this State,” this does not preclude Maryland from recognizing same-sex marriages solemnized validly in another jurisdiction.

Maryland pointed to cases in Wyoming and New York (predating enactment of New York’s marriage-equality law) that permitted same-sex couples married in another jurisdiction to divorce in their home state.  Christiansen v. Christiansen, 253 P.3d 153, concerned a couple who were married in Canada and sought to divorce in Wyoming.  Like Maryland, Wyoming has a statute limiting marriage to a man and woman, but does not proscribe recognition of valid foreign same-sex marriages.  The Wyoming Supreme Court concluded that recognizing a valid foreign same-sex marriage for purposes of a divorce proceeding “does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages [in Wyoming]” and so was not against public policy.  Similarly, New York recognized foreign same-sex marriages for the purpose of divorce in Dickerson v. Thompson, 73 A.D.3d 52.




However, courts of other states have held that same-sex couples cannot be divorced.  In Texas, the court reasoned in In re J.B., 326 S.W.3d 654, that because V.T.C.A., Family Code § 6.204(b) declares same-sex marriages void and against Texas public policy, a “void” same-sex marriage has no legal effect in Texas.  And 6.204(c) prohibits such marriages from being recognized or given effect by the state or in any judicial proceeding, functioning as a jurisdictional bar.  The court distinguished an action for divorce from one seeking to declare the marriage void, which would be permissible under Texas law, because “[a] decree of voidness does not ‘give effect’ to the void marriage but, just the opposite, establishes that the parties to the ostensible but void marriage were never married for purposes of Texas law.”

An action to declare the marriage void may be a possibility where divorce is not, but it does not provide the same level of recourse to the courts.  In a divorce, the court has the authority and the obligation to ensure the parties’ property is distributed and, where there are minor children, to superintend the resolution of custody and child support issues.