Alabama lesbian couple denied divorce; could it lead to same-sex marriage in the state?

March 17, 2014

Army ssm wedding ringsSo far, the shifts in same-sex marriage laws that have occurred since the Supreme Court’s U.S. v. Windsor ruling last June that we’ve discussed have involved couples wanting to get married or already married couples seeking to have the benefit of rights and privileges already enjoyed by heterosexual spouses.

The legal disputes in these cases arise when the laws of the couples’ respective jurisdictions discriminate against same-sex couples, and these couples challenge this discrimination in court.

Another form of such discrimination that is a less common occurrence in court is a refusal by a judge to allow a homosexual couple to divorce in a state in which same-sex marriage is not recognized.

Last year saw the Texas Supreme Court hearing oral arguments in a pair of cases over same-sex divorce rights, and last week in Alabama, a circuit judge denied the uncontested divorce petition of a lesbian couple because, since same-sex marriage is not legally recognized in the state, divorce is not an available option to the couple.  The spouses, Shrie Michelle and Kirsten Allysse Richmond, were married in Iowa in November of 2012, but they are both from Alabama and both of their families live there as well.

Why can’t the couple just head back to Iowa to get divorced?

Because Iowa, like every other state that recognizes same-sex marriage, has a residency requirement for married couples seeking to get divorced; Iowa has a residency requirement of 12 months, one of the longer requirements in the country.  This means that the couple must relocate to Iowa for one year before they are legally allowed to file for divorce.

The couple has stated that they plan to appeal the decision, which may have serious implications for the status of same-sex marriage in the state – if not the country.  A favorable decision on appeal for the couple would mean that the state of Alabama would be required to recognize validly executed out-of-state same-sex marriages.

But Section 2 of the federal Defense of Marriage Act (DOMA) – the part that survived the Supreme Court’s Windsor ruling – allows states to refuse to recognize out-of-state same-sex marriages (whereas normally, the Constitution requires one state to recognize a valid marriage of another).  Thus, a favorable decision for the lesbian couple could require a court to rule that Section 2 is unconstitutional, assuming that a federal court ruled on the matter.  And because Alabama has a state constitutional ban on the recognition of same-sex marriage (which passed in 2006 with a whopping 81% of voters in support), the couple’s only real chance of success lies in federal court (which could invoke the Supremacy Clause to invalidate the state anti-same-sex marriage amendment).

Although the legal struggle for the right for same-sex spouses to divorce seems a far less romantic and admirable campaign than an analogous fight for the right to marry, the burdens placed on couples in the former scenario are in many ways heavier  than those seeking to get married to begin with.

After all, as demeaning as it may be for the state to refuse to allow someone to marry someone of the same sex with whom he or she is in love, it’s not forcing two people to maintain an intimate, social arrangement against their will.

Conversely, the same is not true of a state refusal to allow a same-sex couple to divorce.  The spouses are literally locked into their existing marital arrangement unless they are willing to relocate across the country for the sole purpose of securing a divorce.

To be sure, they could “pretend” that they were divorced by moving out and changing their relationship status on Facebook to “Single,” but there could be serious concerns relating to property and taxation by remaining married.  Moreover, the situation is complicated even further if there are children of the marriage to consider.  And, of course, being told by a judge that you can’t get divorced because your marriage “doesn’t count” in the state would certainly be demeaning at a comparable level to being barred from getting married to begin with.

Although it remains to be seen just how persuasive constitutional arguments involving same-sex divorce will ultimately be, it seems almost certain that, as more jurisdictions recognize same-sex marriage, there will be more cases of same-sex spouses seeking to get a divorce.