In order for a court to grant a divorce, the marriage must first be legal. This can present a problem if your state does not recognize same-sex marriage. In addition, while some states do have laws in place to protect same-sex couples, many states do not recognize these laws and would not offer the same rights and benefits granted by your home state.
Because of this, it is crucial that same-sex couples do what they can to create their own protections by using legal venues that would be recognized in any state. One area of the law in which we see this alternative documentation is estate planning.
A Power of Attorney, for example, could provide some protection in the event that you or your spouse becomes incapacitated and needs the other to speak on their behalf with regard to medical treatment or financial issues. (You may also want to read this book on gay and lesbian medical rights to learn more.) A living will or a health care directive would be another good document to have in place and if you intend for your spouse to inherit your marital estate after your death, then a legal will and/or trust is an absolute must.
Divorce, however, raises another issue as you are both still perfectly capable of speaking on your own behalf and are likely hoping to rely on marital property laws to divide your marital assets.
In states where same-sex marriage is considered legal, this may no longer be as much of a problem since a legal marriage can be legally dissolved in a court of law. Couples in these states would likely benefit from the divorce laws already in place and could receive some legal assistance with common issues such as alimony and property division.
But couples living in states where same-sex marriage is not recognized would not be afforded these same rights, even if your marriage originally took place in a state that legalized same-sex unions. For example, a lesbian couple who lived in Massachusetts and married in Massachusetts later moved to Rhode Island and eventually split up. They cannot get a divorce in Rhode Island because, under Rhode Island law, they aren’t married. They cannot get a divorce in Massachusetts because they do not reside in Massachusetts and the courts there have no jurisdiction over them or their property. The couple is unable to have their property division issues resolved by a court due to this snafu.
As a result of this type of situation, you could find yourself with few or any rights at all and it would be left to you and your soon-to-be ex to decide how best to handle your break-up.
To avoid this situation, you should look to other legal forms to ensure that your rights are protected in the event that the marriage doesn’t last. A simple contract or cohabitation agreement could provide many of the protections that you would seek in a property division hearing.
In addition, a domestic partnership – if available in your state – could further add to your security by outlining any agreements you and your spouse have with regard to living arrangements and other personal issues that would normally be handled by a pre-nuptial agreement.
You may also want to read this book on same-sex divorce for more information.