Same-Sex Couples and Divorce

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4 Responses

  1. SeniorD says:

    Sociological studies also suggest male homosexuals (to use the proper, non-gendered identifier) are far more likely to join for a single session of intercourse than remain together. While female homosexuals are more likely to remain as a couple, the males appear to just want to ‘hook up’ to use a modern concept. Given the shortened life span of homosexual males, one must wonder how such couples would deal with issues such a survivors insurance, joint property and the odd adulterous affair.

  2. Evan Foster says:

    It will obviously be difficult for same-sex couples to divorce in states which don’t recognise same-sex marriage.But there should not be a problem if the couple returns to the state which married them in the first place.

  3. Ken Rhodes says:

    On the other hand, a state that allows marriage without a residency requirement might still demand a significant period of residence for a divorce. That would tend to present serious difficulties for “return to the state which married them.”

  4. Courtney Joslin says:

    Thanks for your comments.

    If the usual rules of personal jurisdiction were applied to actions to terminate a marriage, then most couples likely would be able to return to the state of marriage for the divorce. This would be true because in most situations, a court in the state of marriage would have personal jurisdiction over both parties.

    But the usual rules of personal jurisdiction do not apply to actions to terminate the marriage. Instead, it is generally understood that one of the spouses must be domiciled in the state (that is physically present with intent to remain) for a court in that state to have jurisdiction to grant a divorce. No consideration is given to the connection between the defendant spouse, the action, and the forum. As I explain in my article: “Application of general jurisdiction principles would allow the parties to evade the divorce requirements of the [the parties’ home] state …. While such evasion was permitted in other types of civil actions, this result was simply unacceptable in the context of divorce[.]”

    Moreover, as Ken suggests, almost all states have enacted residency requirements for divorce, the most common length being six months. These statutory residency requirements were enacted in part to ensure that divorces decrees granted by courts in the state were properly granted and entitled to full faith and credit in other states.