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Same-sex divorce issues

Recent posts have discussed the ever-changing family structure and how such changes influence divorce. One of the most influential changes to family law recently comes in the form of same sex marriage, and the increasing expansion of the definition of marriage. These changes also impact divorce. Some trouble has erupted, however, as numerous states have different laws on the matter of both same-sex marriage and same-sex divorce.

The state of California recognizes same-sex marriages and therefore same-sex divorces. However, when a same-sex married couple moves from California to a different state, they could run into trouble if they decide to divorce. That is precisely what occurred for one Mississippi same-sex couple who traveled to California, married in the state, and then moved back to Mississippi.

The couple has since separated, like so many other married couples, and now would like a divorce. However, they are unable to do so in Mississippi because that state does not recognize same-sex marriage.

Many same-sex couples run into similar problems when they marry in one state and then move to another that does recognize same-sex marriage. In the worst case scenario, the couple must remain married and does not have the option to divorce because they lost the jurisdiction of the marrying state when they moved. California does carve out an exception to these problems by allowing couples who married in the state to come back and obtain a divorce. However, this does not necessarily solve property division and child custody questions that need to be enforced in the state where a couple's assets and children might reside.

The ever-changing definition of family often requires the law to change with it. But the laws of different states do not always change at the same time. Knowledgeable legal counsel can advise a client on how best to address these complex issues.

Source: San Jose Mercury News, "Next step for same-sex marriage: The right to divorce," David Crary and Holbrook Mohr, December 1, 2013.

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John T. Chamberlin, Attorney at Law
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