Second legal question in two days but this one is hypothetical:
Suppose a gay couple- Alice and Betty- married in Vermont or Iowa or one of the other states where it was legal at the time they did it. Later they move to Tennessee or Alabama or Ohio or one of the 40 states where it’s explicitly not recognized, and while there they split up. Let’s further suppose that their marital estate, most of it accumulated while together, is substantial (not enormous, but substantial), and more is in Alice’s name than Betty’s.
Would Betty have any better chance of getting a community property settlement in the state where they live (where gay marriage is illegal) than any other unmarried domestic partner based on the fact that their assets would be considered community property in states that recognize their marriage? For that matter, if Betty returned to a state where their marriage is legal and got a judgment awarding her half of the marital estate, would it be enforceable in a state where same-sex marriage is not recognized?
I’m guessing something similar this has probably happened. I know there have been some really nasty custody battles twixt former gay partners in states where laws are different.
I read an article a few months ago on cnn.com (maybe? can’t remember where) about a couple in this situation. They had to return to the state where they got married to get a divorce. In that state it was handled the same as a “regular” divorce regarding division of assets, etc.
The angle in the story was that neither had the money to travel back to that state so they had to remain married for way longer than they wanted to until they saved up enough money for travel and legal fees.
In general the best place for a married gay couple to divorce is the state they were married in. That states laws are equipped to handle those divorces
An example of a bad state for a gay couple to divorce in would be Texas as their courts have ruled since gay marriage in the state is not recognized nor should any divorce between a gay couple should be recognized.
And moving into debate territory, the laws against gay marriage that have been passed in the last ten years goal have not been to ensure heterosexual marriage was elevated, the goal is to make being gay as inconvenient as possible. So things a gay couple might want to do in those states like be married or be divorced are made as difficult as possible. If their goal was to simply ensure all marriages where heterosexual, you’d think getting a divorce in those states would be easier. The case time and time again is it is harder for a gay couple to get divorced in states that ban gay marriage.
Unfortunate wording here. “Community property” has a very particular meaning, and only applies in a few states.
And no, at least not in my state. We are not a community property state, and the state would not recognize the marriage, and therefore would not grant a divorce. A potential solution by a creative lawyer might be to claim that a defacto partnership (in the business sense) existed, and petition the Court to dissolve the partnership and divide those assets without reference to gay marriage.
If you really want to complicate things have Alice marry John while living in a state that doesn’t recognize SSM; then either have that state legalize SSM or Alice & John move to a state that does recognize SSM.
It used to happen like this all the time. In the “old days” a lot of states refused to recognize a Nevada divorce.
I recall reading in a biography of Rita Hayworth, where her boyfriend singer Dick Haymes got a divorce in Nevada and the two married.
However California reufsed to recognize it. And what was worse, the California court allowed Haymes wife (remember they were divorced in Nevada, but married in California) to go after Rita Hayworth, for back support.
Of coure being one of the biggest stars in Hollywood, Hayworth couldn’t step foot in California as she’d be served with papers. And if she didn’t go to California she was in violation of her studio contract.
Eventualy the lawyers worked it all out, but you can see what a mess any divorce can be.
There was a saying in the old days “Divorce is only for the rich.”
Seems to me that all the states ought to go ahead and legalize gay marriage, then, just to prevent those wacky, uppity gays from trying to cheat the system by getting two marriages for the price of one! That’ll show 'em!