The ultimate marriage equality civil rights frontier is the gay and lesbian divorce rights issue – as same-sex couples have less divorce rights than they do the right to marry!  In seeking a divorce one needs to qualify under the particular divorce residential statutes of the state one lives in and many married couples do not live in a state that recognizes their marriage at all, while living out of the state that married them in the first place.

The last thing on our minds when we marry is divorce.  That is why so many spouses, straight or gay, are surprised when presented with premarital agreements! We do not begin to think of divorce, when starry-eyed in love and tying the knot.  The thought of ending our marriage with our beloved seems far fetched! If we did worry about that we would probably not get married, especially the many same-sex couples, for whom divorce, by virtue of  lack of law, is not even option.

In my divorce mediation practice it is common for people not to give divorce a moments thought at the time of marriage and many of the same-sex, now unable to divorce at all, did not imagine the impact.  If you live in a State that does not recognize same-sex marriage, you will not be able to divorce in that State and if you married in a State that you do not reside in, under the legal definition for that State, then there will not be jurisdiction for the court of that state to hear and grant your divorce.

You will be stuck!

The blade has reported that D.C. Council member Phil Mendelson (D-At-Large) introduced a bill in October that would allow same-sex couples who marry in D.C. but live in states that don’t recognize their marriage to return to the District to get a divorce.  Supporters say the bill, the Civil Marriage Dissolution Equality Amendment Act of 2011, is needed because states that don’t recognize same-sex marriage have no legal mechanism to issue a divorce to gay or lesbian couples who wish to dissolve their D.C. marriage through a divorce.

“Under the city’s existing marriage law, which allows same-sex couples to marry, one or both parties to a same-sex marriage performed in D.C. would have to become a city resident for six months before the city would grant the couple a divorce.

Married same-sex couples who are city residents ought to have the same rights to a divorce as opposite-sex married couples under the existing law.  According to an article in The Blade, “If we offer civil marriage, we must offer civil divorce,” Summersgill said.

Eight of the Council’s 13 members signed on to Mendelson’s bill as co-sponsors, including gay Council members David Catania (I-At-Large) and Jim Graham (D-Ward 1).

“MORE IN THE BLADE: THE HISTORIC VOTE FOR MARRIAGE IN D.C.

The two Council members who voted against the city’s same-sex marriage law at the time the Council passed it in 2009 — Yvette Alexander (D-Ward 7) and Marion Barry (D-Ward — did not sign on as co-sponsors to Mendelson’s divorce bill. Both are up for re-election in 2012.

Brian Moore, an aide to Mendelson, said the full Council is expected to vote on the bill in early 2012. Moore said no one showed up at the Dec. 8 hearing to oppose the bill.

“The legislation addresses a problem with uneven laws across the country regarding marriage rights,” Summersgill said in his testimony. “Only a handful of states are up to the District’s standard of human rights. In states with laws promoting anti-gay discrimination, divorce of legally married same-sex couples is not an option.”

In my mediation practice I have already seen many couples caught between ‘a rock and a hard place,’ unable to divorce unless they acquire residency in a state that has recognized same-sex marriage.

As DC takes the issue further, hopefully more of us will write about the hardships presented to couples who marry and who should have an equal playing field when it comes to divorce.

by Melanie Nathan
nathan@privatecourts.com
Twitter: @gayusathemovieandB
Facebook: Melanie Nathan Advocacy