When the Supreme Court ruled a key aspect of the Defense of Marriage Act (DOMA) unconstitutional last month, it made a life-changing difference to many married same-sex couples, who will now be entitled to all the federal benefits they were previously denied. But those gay couples whose marriages aren’t working out remain in legal purgatory.
Divorce is solely the province of state law. If a couple who were wed in New York but live in Philadelphia want to be divorced, well, they can’t be. Not only is same-sex marriage prohibited in Pennsylvania — the court’s landmark ruling in United States v. Windsor does nothing to change that — but Pennsylvania’s “mini DOMA,” passed in 1996, provides that such a marriage entered into elsewhere is “void in this Commonwealth.” And if Pennsylvania doesn’t recognize you as being married, its courts have no authority to divorce you.
You might think that the unhappy couple could simply travel back to New York to get divorced. But they can’t do that either. Although New York allows non-residents to marry, when it comes to divorce you have to live there. This is not unique to New York but is the case across much of the country.
Currently, none of the 50 states requires residency as a prerequisite for a marriage license. In other words, straight people can drive to Las Vegas from anywhere and get married at the Elvis chapel. This is why gay and lesbian couples have flocked to Vermont, Massachusetts, New York and the rest of the states where they can get married — for the weekend of their weddings, that is. But like New York, most states (with the exception of California, Vermont and a handful of others that have special exemptions for same-sex couples who were married there) require that at least one spouse be a resident to file for divorce. While the definition of “residency” differs across jurisdictions, it always means that someone must live there for a substantial period — in New York, for at least one year in most cases — before a divorce complaint can be filed.
So the unhappy couple is stuck unless one of them moves to a state that will a) recognize their marriage; and b) lives there long enough to satisfy the residency requirement. What happens if neither spouse does this and one of them wants to marry someone else? She can’t. Because she’s still married. The irony is overwhelming: Gay people have fought so hard for marriage equality and now, when some of those marriages fail, they need to fight for the right to get divorced.
It seems inevitable that the Supreme Court will eventually find it unconstitutional for states to prohibit same-sex marriage, just as it did with laws banning interracial marriage. And when the justices finally do this, all the federal benefits of marriage — those benefits that DOMA’s demise now affords only to a subset of same-sex couples, based solely on the accident of geography — will apply to all couples. Likewise, the very tangible benefits of divorce — the right to remarry, the right to divide property, the right to receive support — will be available to all couples. But until that day comes, all gay-friendly states should consider eliminating their residency requirements for divorce. There’s a pent-up demand, and it’s only going to increase.
Margaret Klaw is a founding partner of Berner Klaw & Watson, a law firm in Philadelphia, and author of the forthcoming book “Keeping It Civil: The Case of the Pre-Nup and the Porsche & Other True Accounts from the Files of a Family Lawyer.”