The fight over same-sex marriage has been nasty and now, here comes another one: Same-sex divorce.
New York has recently legalized same-sex marriage, not just for residents but also for out-of-staters. Now that New York has allowed it, same-sex couples will be marching in to get married. And eventually, march in to get divorce.
However some Americans love to go from one place to another. Once they move to a state which does not legalize same-sex marriage, that’s when their dilemma starts.
If a couple marries in New York and gets a divorce in Texas, they won’t be just arguing with each other. They will also be fighting with Greg Abbott, Texas’ attorney general.
Abbott has stated that if the state does not recognize the union, it won’t recognize the divorce either. In addition, if the couple gets blocked in Texas, they can’t go back to New York either for a hasty divorce. The state of New York demands residency of at least 90 days for couples who want divorce.
And for most people, 90 days is far too long.
Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School recently asked, “Where can you a divorce? And the answer might be nowhere.”
According to Andrew M. Koppelman, author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines” and a professor at the Northwestern University School of Law said, there will be adverse results if Abbott and other attorney generals would not recognize same-sex marriage.
Koppelman added, a woman in a same-sex marriage in New York could go to Texas and marry a man since her previous marriage doesn’t exist there. And she even doesn’t have to tell him that she had a wife in New York.
“Even those couples having no problems in terms of divorce would find it extremely different from that of heterosexual couples”, said Margaret M. Brady, a lawyer in New York specializing in family law for same-sex couples. In New York, automatic division of property is only for assets obtained after marriage, not premarital contributions to things such as real estate. However some of her clients have been together for 15 years or more before marriage.
Brady added, it would be good if the courts are willing to consider those premarital contributions that were made when couples were unwed because they could not avail of the privilege of marrying at that time.
But of course, same-sex divorce is not new.
In 2004, Massachusetts first allowed same-sex marriage. But some of those pioneer couples have come to the awareness that marriage is not working out for them. And now that New York has legalized same-sex marriage, this will bring in new cases.
William C. Duncan, the director of the Marriage Law Foundation said, things are sure to change nowadays.
People have found ways to get around barriers to divorce. In the older days, some states didn’t allow divorce unless one spouse could prove something like sexual escapades, abandonment or cruelty. In Nevada, it took only a few weeks to establish residency. Even one spouse is enough to break the union.
However as time passed, the Supreme Court has managed to break couples apart and the rise of no-fault divorce made the trip unnecessary. And the speedy Reno divorce slowly disappeared.
Allen A. Drexel, a family law expert in New York said that denying divorce is denying justice. He added that the right to get a legal divorce is one of the most significant, if least celebrated, rights of marriage.
Margaret M. Brady added, regardless of the sexual orientation, divorce is the state’s way of allowing fairness for couples who have fallen out of love. Divorce protects the weaker, poorer spouse and the children. No matter which parent’s home the children stay in, the state can demand alimony, child support and maintenance payments.
She further said that if those arrangements are properly established, it will compel divorcing couples, whether gay or straight to find their better selves and act accordingly.
An adviser to President Bill Clinton on gay issues and now president of Equality Matters, Richard Socarides said, the present contradictions in our law might eventually work in time to push the issue of same-sex marriage forward as a number of individuals come out, marry and divorce. And with that large group of people coming out, it will be difficult to discriminate.
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