If I am married in (say) Florida, need I appeal to a Florida court to dissolve the marriage? Can one state undo the marriage done in another?
Then I wonder about gay marriages in California. People were legally wed, but then any further such unions were banned. Can a California court break up a gay marriage if the state is prohibited from recognizing gay marriage?
Gosh, there are angles to this gay marriage stuff I never thought of before.
AFAIK states can pretty much make up their own rules regarding gay marriage, since the federal government is too chicken to take a stand. I’m not even sure a state has to recognize a gay marriage at all.
You can probably see where I stand on the issue, so I’ll leave it at that.
So if a gay couple is married in Iowa, but lives in Georgia, I presume a Georgia court would not be willing to grant a divorce. But if they drove to Iowa, would the court do the deed for two non-residents?
This article provides a very good introduction to the differences between the celebration of marriage and the recognition of that marriage in another state where it could not be lawfully contracted. Historically, most such “imported” marriages were recognized, even if they could not be obtained in the state. However, same-sex marriages have received quite different treatment (save a few places like D.C. or the state of New York, which does not allow SSM, but will recognize SSMs–but not civil unions–validly obtained elsewhere).
There’s jurisdictional issues to consider regardless of whether the marriage is gay or straight. Some states–perhaps most–have a residency requirement, ie at least one of the parties must have resided in the state for some period of time prior to filing. If there are children involved, there’s another level of complications to consider–only the “home state” of the children has jurisdiction to decide custody in non-emergency situations, and that may or may not be the same state as the person filing for divorce. Real property can also complicate things…
In my state, I seriously doubt our courts would even consider granting a divorce in a gay marriage, because we do not recognize those marriages as valid. We frequently grant divorces in straight marriages where the wedding happened out of state, but the residency requirement is satisfied.
It still only takes 6 weeks of residency (one party) to get a divorce in Neveda. Every wonder why people in old movies/TV shows talk about “going to Reno”? That’s why. When a couple wanted a quickie divorce one spouse (normally the wife) would check into a hotel for 6 weeks and come back with divorce.
This was a common problem in the days of old. For example Nevada was famous for it’s quick divorces but often these divorces were not recognized in other states. Same with Nevada marriages.
A woman could be divorced in Nevada but married in California.
A very weird example was Rita Hayworth and her marriage to Dick Haymes. Dick was divorced in Nevada, but his wife was in California which refused to recognize the Nevada divorce. He then married Rita Hayworth in Nevada.
For those who don’t know Haymes was a singer and bandleader in the 40s and Hayworth was one of Hollywoods biggest actresses in the 40s.
Haymes was in debt to everyone and wasn’t supporting his wife and kids. Oddly enough, Haymes wife (or ex-wife) sued in California and the California courts allowed Haymes wife (or ex-wife) to go after Hayworth to get money for support of her and the kids.
So it was like California was saying, “We don’t recognize the divorce but we recognize the marriage to Hayworth.”
Of course Hayworth had to work in Hollywood so she instantly got her lawyers and arranged a deal to get California to recognize Haymes divorce and she got her money protected.
So it goes to show you, it’s not just gay marriage, in the “olden days” states didn’t always recognize each other’s marriage and divorce decrees. So it was possible to be married or divorced only in certain states, depending on which ones had reciprocal agreements.
Do you have a cite for this? Because unlike marriages, divorces are treated as judgments and afforded full faith and credit by the courts of the sister states. The only grounds for not giving effect to a divorce judgment in a non-forum state would be that the forum state never got appropriate jurisdiction. If Haymes met the Nevada jurisdictional requirements, the divorce would be proper (divorce requires only in rem jurisdiction and may proceed even if one of the spouses has never once step foot into the forum state’s territory).
I don’t think there is any residence requirement for marriage. I was married in NJ although neither my wife nor I lived there (but her mother did). And people from Philadelphia were always running off the Elkton MD for marriage (I think there was no waiting requirement or maybe no blood test). And gay couples from NY are getting married in MA.
Incidentally, does the IRS recognize gay marriage for income tax purposes?
The so-called Defense of Marriage Act (DOMA) forbids all federal agencies, such as the IRS, from treating any same-sex marriage, even if lawfully obtained or recognized in a U.S. state, as a marriage for the purposes of federal law. The unconstitutionality of DOMA remains subject to a welter of litigation.
Gee there is a lot to this. I was listening to NPR in the DC area and they were discussing DC family law.
Under the doctrine, A person approving a woman to be inpregnanted in order to become a parent becomes a parent without the need to adopt the child, a lesbian couple becomes parents very easily. A male couple cannot (as surrogate mothering is illegal in DC).
The divorce issue also arose in Canada, after the courts in some provinces held that same-sex marriage was required by our Constitution. A couple got married, and then later decided to divorce. Problem was that the definition of “spouse” in the Divorce Act at that time referred to husband and wife. So they had to bring a constitutional challenge to the Divorce Act, similar to the challenges to the common law definition of marriage. The court ruled that the Divorce Act was under-inclusive and allowed them to get the divorce.
Parliament has since fixed this problem by an amendment to the Divorce Act.
There is an issue, however, for couples who come from the US to get married in Canada. None of the the Canadian provinces have a residency requirement to get married here. There might be a waiting period between getting the licence and the ceremony, but those periods are usually short (24 to 48 hours, typically).
However, the federal Divorce Act requires that a person be resident in a province for one year before the courts of that province have jurisdiction to hear a divorce petition.
So, if a same-sex couple from the US comes to Canada to get married, and later wants a divorce, they can’t just come back up to Canada for a quickie divorce.
Quickie Canadian marriages, yes. Quickie Canadian divorces, no.
There are two questions you’re conflating. Under American law, the province of marriage and divorce is left to the states. So there is no general residence requirement for either. However, any state can impose whatever such requirements it wishes. Famously, Massachusetts has started enforcing an residency requirement for marriages there that was on the books but ignored for decades to stem the tide of gay couples from other states getting married there. So as a matter of national law, there’s no residency requirement, but the only thing that matters is the law of the state where you plan to get hitched. (I don’t know of any other state that enforces a residency requirement. I too got married out of state.)
Kimmy is right that divorce decrees are given FF&C today. The rule is that the conjugal is present in any state in which either spouse is present, so that state has jurisdiction to dissolve the marriage. However, that state won’t necessarily have jurisdiction over marital property or the children, so you can get divorced in Nevada, but you still might have to go back home for the property settlement and childcare orders. However, as noted above, that was pretty controversial in the early days, and not all states would grant recognition to such decrees. I don’t know the legal footing, but it certainly happened. (I assume it was an invocation of the public policy exception to the FF&C Clause – the same thing that allows states not to recognize same-sex marriages performed elsewhere.)
That said, the ability to get a quickie divorce in Nevada was a big deal from the post-war years to the '80’s (even later some places). But in the last 15-20 years, no-fault divorces have become the standard. They may take more time than a Nevada divorce, but unlike the old days, you don’t have to prove spousal abandonment or abuse like you used to. Just “don’t wanna be married to him/her” is a good enough reason nowadays. (The Deep South has started some movements to get rid of these rules via “covenant marriage,” but they don’t seem that viable politically. And they’re impossible to enforce, because you could still get an out-of-state divorce.)
Anyway, I think this is probably the right decision for the Indiana court, as far as it goes.