Some same-sex couples who got married prior to the June 26, 2015 Supreme Court decision, found that their state of residence didn’t recognize their marriage and so didn’t recognize their ability to get a divorce. States that did recognize their marriages had residency requirements for divorce. Those couples were “wedlocked,” or unable to get divorced. The Supreme Court decision requiring states to recognize their marriages meant that they can now file for divorce.
But there are still a number of issues same sex couples need to be aware of if they seek dissolution of their marriage.
Even if children were born during the marriage, it is not clear how states will handle child custody issues when there has been no second-parent adoption. See our previous article about Special Considerations for Same-Sex Couples and their Children.
Previous Civil Unions
As states allowed domestic partnerships, then civil unions, and then marriages, couples often had more than one status before getting legally married. These previous statuses can lend their own complications to a divorce.
For example, Media outlets report that a Pennsylvania judge denied the dissolution of an out-of-state civil union between two women who have been separated for more than a decade, because the union wasn’t a marriage that could be dissolved. Similarly, a marriage to a different person when a civil union hasn’t been properly dissolved, could lead to charges of polygamy or bigamy. Further, a second marriage would be void if the first union was not properly dissolved.
Length of Relationship
A couple who was together for many years prior to marriage may find out that assets or debts they thought were joint or marital are actually separate because they were acquired prior to the marriage. Similarly, a party who seeks alimony based on a lengthy relationship may have trouble because the marriage itself was short. See our previous article about how to avoid some of these pitfalls by using a prenup.
Because of the special complications concerning same-sex marriages and divorces, couples should seek legal advice about how to dissolve these relationships.