The 18,000 legal marriages in limbo should make for some very interesting lawyerly conversations.
Divorce becomes a one-way ticket out of the bubble.
How tricky are things about to get when deciding whether or not to grant a divorce to any of those 18,000? Can one party cite that they do not wish to divorce because it would result in an irreplaceable loss, not only with that person specifically, but with any same-sex partner that they might potentially want as a spouse?
And in cases of deciding things like child support or alimony as part of such a divorce, is there a compelling case if someone were to insist that they don’t need to be held accountable for making payments because the institution/responsibilities no longer apply to them?
IANAL, but I can’t see why this would matter. If one party has a legally enforceable ground for a divorce, even if that is a no-fault ground like irreconcilable differences, then by law, they are entitled to the divorce. I can’t see why the extra, “but, I can never get married again” defense would apply…
I have a murky-at-best understanding of the legalities of divorce, but if it is such a straightforward process, why do judges have to be involved at all?
I hope that same-sex couples and their counsel don’t try and exploit every dark corner of the odd state we are now in, but what I want and what the overly-litigious want are often very different.
Huh? Because divorce orders are granted by courts. If you want a divorce, you initiaite divorce proceedings in the appropriate court for whatever jurisdiction you happen to live in. How can a judge not be involved?
If you want to be divorced, you go to court. If your partner wants a divorce, and you don’t, you have to resolve those issues in court. Is this being “overly-litigious”?
I don’t understand why you think they are in legal limbo. The marriages that took place before Prop 8 passed are valid marriages and will be treated like any other marriage.
Treated like any other marriage except they cannot (legally and without moving to another state) decide to remarry the same person or any other person of their apparent sexual preference. As I said in my OP, divorce for any of these couples is a one way ticket out of the bubble they are currently in.
As I attempted to relay in the OP, I am curious how (if at all) the legal system is going to adjust their behavior when considering cases involving any of these 18,000 couples. Specifically, if one party is resistant to a divorce and one of the reasons that they cite in court is the fact that it wouldn’t be just any run of the mill divorce, but the loss of an invaluably rare/novel/restricted state that can never again be achieved. If someone pulls that sort of an argument out in divorce court, would it have any sort of effect on the decision whether or not to grant the divorce, under what terms, etc. Can someone potentially eek a few more alimony dollars by stressing the extra emotional toil that would come from not just dissolving a marriage like any other, but a marriage of particular social and cultural significance, etc, etc.
Please understand that I do not personally hold such views, I’m asking from the devil’s advocate perspective.
I would consider a case like the one I just illustrated to be overly-litigious. Trying to fight or sue so that one does not have to pay child support or alimony because there might be a loophole introduced by this strange legal state that these 18,000 couples are in would be, imho, overly-litigious.
The intent of my question is not to promote such cases, but understand the the circumstances and precedents better in case I need to try and talk some of my friends out of becoming overly-litigious in such a manner.
First of all, you can’t force someone to stay married in California. That would violate other constitutional rights. So, if you want a divorce, the court has to grant it. What the court decides is how property is divided, custody issues and the like.
But, as far as property division (we don’t really have alimony in CA), I don’t think a court is going to entertain an argument about not being able to get married again. It’s one thing to deprive someone of their existing marriage, because that would be taking away their vested property rights. That’s a completely separate issue from depriving someone of property rights which haven’t vested yet. The state routinely does that in a number of different ways. It would be asking the state to put a financial value on something which never existed.
Yes, I’m sure if I was married to a supermodel, I could prevent her from divorcing me because I could cry about losing an invaluably rare/novel/restricted state that can never again be achieved, that state being married to a supermodel.
I don’t know why you think that one person who wants to get divorced from the other spouse would find the other spouse begging to keep the “wanting a divorce spouse” around just because they’re one of a select few 18,000 couples? I mean, jesus, that’s painting the desperate-to-stay-married-spouse in a really low light.
Basically, one-sided divorces are nothing new - you can’t keep the people married just because.
But that’s not a consequence of the divorce; that’s a consequence of the marriage. Once you’ve married A, you cannot thereafter marry B until the marriage to A is terminated by death or divorce.
So the objector can’t say that a divorce would prevent him from remarrying; he’s currently unable to remarry. What he could say is that a divorce would not open up for him the opportunity to remarry that it ordinarily does. However, that’s not necessarily a strong argument for not granting the divorce, because not granting the divorce doesn’t open up that opportunity either.
The grounds for divorce will be laid out in the California divorce legislation, as well – presumably – as special grounds on which a divorce may be refused, even where a ground for divorce is present. It may be – I’ve no idea – that a court can decline to grant a divorce, even when grounds are established, if do to so would cause special or unusual hardship, or something of the kind. If so, there’ll be case law about the kind of circumstances which could lead to a divorce being denied. And, if there is such a provision, and the case law is at all helpful, the objector could attempt to hang his hat on that.
But I wouldn’t give much for his chances. What the divorce does is to remove his status as a married person, but all divorces do that. While he would normally have the hope that he could regain that status by marrying someone else, he can’t guarantee that anyone else of the same sex would ever agree to marry him. Besides, he will be in no worse a situation than a homosexual person who has never married, or who is widowed, so the hardship of his position will not be particularly unusual… In any event, the benefit of having the legal status of a ‘married person” when there is no real marital relationship and when your spouse wants a divorce and has established the grounds for one is debatable. Finally, the court would presumably want to balance this hardship against the alternative hardship of keeping the other spouse in a marriage when they want a divorce, and have established the grounds for one, and may want the opportunity to enter into an opposite-sex marriage with someone else, or a same-sex marriage in jurisdiction other than California
I’m just sayin’, there have been “pain and suffering” judgements that defy any and all reason. Being gay != ethical. I would not put it past some of “my people” or some of any given group of people to try and clog the courts with something like that.
I’m not a mind-reader, but I’d wager a substantial sum that the asinine pain and suffering judgments that you cite have absolutely nothing to do with divorce law.
It’s almost as far off in left field as a criminal defendant raising issues of trademark violations in a DUI case.
And if this is a ruse to clog up the courts as a form of punishment for doing exactly what the courts should have done, well, they’ve got a lot of nonjusticibility doctrines available to expeditiously rid these cases from dockets
