No Exit: The Problem of Same-Sex Divorce

BY Elisabeth Oppenheimer

Same-sex divorce is one of the most complicated and least discussed aspects of the gay rights movement. The legal complexity is best illustrated with an example. Suppose a same-sex couple marries in Massachusetts, which recognizes gay marriage, then moves to Pennsylvania, which does not. The relationship ends. Where can the couple divorce? The surprising answer is nowhere. Pennsylvania courts will not divorce them because Pennsylvania does not recognize their same-sex marriage. Massachusetts courts will not divorce them because Massachusetts—like every other state—only grants divorces to current residents, although it will marry non-residents. As same-sex couples are beginning to discover, the problem is not hypothetical. There are people desperate to end their marriages who are unable to do so, and there are same-sex couples unwilling to get married in the first place because divorce may be unavailable.

This Article explains the state laws that create this problem and why there are no obvious solutions. The Article then surveys the state court decisions on same-sex divorce. In light of this jurisprudence, the Article examines the limited scholarship on how judges should treat divorce petitions from same-sex couples. The Article concludes that judges can often grant those divorce petitions, but that they must pay more attention to the state laws regulating same-sex unions than current scholarship suggests. Although legislative solutions to the same-sex divorce problem have been almost completely ignored, this Article argues that legislatures are in the best position to solve the problem. Specifically, this Article suggests that states that recognize same-sex marriage should allow any same-sex couple married in the state to divorce there, whether or not the members of the couple reside in the state at the time of the divorce. This Article further argues that Williams v. North Carolina, 325 U.S. 226 (1945) does not bar this simple solution, as other writers have assumed. The Article ends by summarizing the most practical solutions to the same-sex divorce problem for judges, legislators, and same-sex couples.

DOWNLOAD PDF | 90 N.C. L. Rev.73 (2011)