For non-resident same-sex couples, one of the nastiest dimensions of the battle has been the lack of access to divorce courts.
If you think anti-gay judges would be thrilled to help these gay couples break up, you’re wrong. On the grounds that granting a divorce would constitute a form of official recognition of their marriage, judges in Texas, Oklahoma, Rhode Island, and other states have refused to grant divorces to lesbian or gay couples who went elsewhere to get married or have relocated from the state in which they got married.
California Courts to Allow Non-Resident Same-Sex Couples to Divorce
These couples just want to get an order of dissolution. They are not asking a judge to grant them any property or alimony based upon their marriage, since they’ve already settled those issues. And these couples have good reasons for wanting the court order.
For them to be free of future liabilities and be able to marry or legally partner their new romantic interest, they still need to get a divorce even if they have resolved their financial affairs.
Domicile rule, the legal origin of these problems, means couples ordinarily can only get divorced in the state in which they reside at the time of their break-up, regardless of where they lived when they got married.
This rule prevents malicious husbands or wives from evading the divorce rules of the state they live in, by simply hopping the state line to get a divorce in another state.
These rules wreak havoc for couples who live in states that won’t grant them a divorce under any conditions, even if they have reached a property settlement with their spouse. This is a vivid example of where the denial of the right to marry ends up as a denial of the right to get a divorce.
The California legislature fortunately just passed a bill that will resolve this problem.
October 19, 2011: SB651 Allows California Divorce Courts to Non-Residents
It was signed into law on October 9th, 2011 by Governor Jerry Brown. This will at least help those who came to California and got married there in 2008.
If and when Proposition 8 (which bans same-sex marriages) is repealed or ruled to be unconstitutional, the new law, Senate Bill 651, will also help those who may in the future get married in California.
The new law will go into effect in January 2012.
California courts will have jurisdiction to grant these couples dissolution provided that a couple got married in California but lives in a state that won’t grant them a divorce. The divorce will be filed in the county where the couple got married, and in accordance with California law, the dissolution is supposed to be adjudicated. This will enable those who have been able to reach their own private settlement agreement to obtain a formal dissolution.
Chances are the dissolution will be honored in other states, even non-recognition states, although there is some uncertainty on the details.
This new law will allow ex-spouses to enter into contracts as a formerly married person, and be treated once again as an unmarried person.
It still is a long way from full marriage recognition in every state, but at least the couples who got married in California will now be free to get divorced.