On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Monday, August 19, 2013.
Same sex couples can marry, but can they divorce? If so, how? These are interesting questions divorce attorneys are asking.
For Ft. Lauderdale resident Adam Cardinal, this is not an academic question, he’s stuck. He traveled to New Hampshire to get married, where same-sex marriages are legal. About 3 years later, the couple separated.
Gay marriage is legal in New Hampshire, but does not exist in Florida. Florida does not recognize gay marriages which are legal in other states.
He can’t travel back to New Hampshire either. New Hampshire, like Florida, has a residency requirement in the state before being able to file for divorce.
As the New York Times reports, it’s even worse:
Mr. Cardinal cannot remarry – to do so would make him a bigamist in states like Massachusetts or New York that recognize his previous nuptials. And although he and his husband did not combine their assets, the lack of an official document certifying the end of their marriage carries financial risks.
“I didn’t realize this could potentially be an issue, that we couldn’t divorce when we wanted to,” Mr. Cardinal said. “That was really upsetting.”
The DOMA decision by the U.S. Supreme Court, was a victory for gay couples, and may offer hope to people who are caught in legal divorce limbo.
Like newlyweds everywhere, same sex couples give little thought to divorcing.
“You think, ‘This is perfect, this is great, I never have to worry about anything,’ and it’s only in retrospect that you sit back and say, ‘I shouldn’t have done that,’ ” said a woman who lives in Florida but married in Connecticut. She insisted on anonymity because she did not want to jeopardize her chances of eventually obtaining a divorce.
Even if your state recognizes same-sex marriages, divorcing can be more complex than for heterosexual couples. Consider the scenario where a same sex couple has lived together for 20 years, but only got married last month.
In Florida, a marital asset is generally one acquired after marriage. During 20 years of living together and acquiring property, even if Florida recognized same sex divorces, would not likely be marital assets here.
Suppose a couple held themselves out as married, and would have marriedhad it been legal. Is it fair to limit the length of the marriage for purposes of awarding alimony to a few months because the 20 years illegal marriage can’t be recognized?
Many questions need to be answered, and the law has not caught up to the changes in our society. We have legalized gay marriages, but have not given as much thought to same sex divorce.