PhillyGayLawyer in Legal Intelligencer: Residency Requirements Leave Couples ‘Wedlocked’ in PA

By | March 10, 2014

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Remember the good old days of marriage when all you had to worry about choosing was a centerpiece and whether or not to invite that annoying second cousin on your mother’s side of the family? These days, as the battle for national recognition of same-sex marriage rages on, choosing what state you get married in is more important than ever—and not just the venue.

What very few heterosexual people know and, shockingly, very few gay people realize, is that while 18 states will now grant and recognize same-sex marriages, they almost all have residency requirements, often for up to a year, in order to file for a divorce—essentially leaving a couple “wedlocked.” Your state of celebration and state of residence might not see eye to eye on the issue of same-sex marriage and, while the federal government will now recognize your nuptials after the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional because it violated Fifth Amendment rights in United States v. Windsor, 133 S. Ct. 2675 (2013), you could find yourself wedlocked if you do not choose wisely.

A few jurisdictions will allow nonresidents to file for divorce, especially if they were married there and their state of residence refuses to recognize their marriage. That’s why, if you live in Pennsylvania and are considering going out of state to get married, Delaware and Maryland are your safest bets in the area because they will let you divorce without living there—at least until marriage equality comes to Pennsylvania. Otherwise, you’ll have to up and move to where you got married and live there for six months to a year to meet the residency requirement and then get divorced.

Anyone who doesn’t want to get wedlocked needs to carefully consider the laws of the states that recognize same-sex marriage before choosing one to get married in. California, Delaware, Hawaii, Maryland, Minnesota, Vermont and the District of Columbia all allow nonresidents to file for divorce in their states in one way or another. Maryland may have the most liberal divorce laws because it doesn’t impose any conditions. Many states, like Delaware and California, will only allow you to file there if you were married there and your state of residence won’t let you. Vermont has the same policy with the additional restriction of not allowing out-of-staters to divorce if they have children. Other states recognizing same-sex marriage impose strict residency requirements, which will leave you wedlocked if you don’t choose wisely.

In the not-so-distant past, it was once illegal for someone to marry a person of another race in almost every state in the country. Anti-miscegenation laws had their roots in colonial America, and by the early 20th century, they were the norm throughout the South, Midwest and West Coast. An 1883 ruling by the Supreme Court in Pace v. Alabama, 106 U.S. 583 (1883), put an African-American man and a white woman in jail for two years for having a sexual relationship, and this continued to be the legal precedent for interracial relationships for decades to come.

Before the landmark decision of Loving v. Virginia, 388 U.S. 1 (1967), was decided in 1967, rendering all laws against interracial marriage invalid, another important marriage case came out of the Old Dominion State. Han Naim, an Asian man, and his fiancee, a Caucasian woman, lived in Virginia but were barred from getting married there by the state’s strict anti-miscegenation statutes. They traveled to neighboring North Carolina, where state law only barred interracial marriages between Caucasians and African-Americans. They were married there and returned home to Virginia. Later, the wife, Ruby Naim, sought an annulment based on the theory that the marriage was invalidated by Virginia’s anti-miscegenation law, but Han Naim claimed that the Virginia state courts didn’t have the constitutional authority to annul their marriage and that a marriage valid in one state should be valid anywhere in the country. The Naims were wedlocked in Virginia, unable to move on with their lives, and the case was taken to the Supreme Court in 1955. The Supreme Court had its chance to stand on the right side of history in 1955 when Naim v. Naim, 197 Va 80; 87 S.E.2d 749 (1955), was appealed, but it chose not to hear the case, as it would force the justices to make a decision on the controversial subject of interracial marriage.

The rest, of course, is history—history that seems to be repeating itself. The court found in 1965 in McLaughlin v. Florida, 379 U.S. 184 (1964), that interracial couples could live together, leading ultimately in a cascade of cases (not unlike the recent same-sex marriage trials heard in Utah, Oklahoma, Virginia and Texas followingWindsor) to the 1967 decision in Loving. However, the Naim case left some interesting questions behind it. What is the status of a marriage recognized by one state but not another, when the couple lives in the state that doesn’t recognize it? This may seem very familiar to you, and it should. This problem can arise whenever a couple from a state like Pennsylvania, which doesn’t recognize same-sex marriage, travels to a state or country that does recognizes same-sex marriage to take advantage of the more favorable marriage laws, gets married, and returns home. Their state of residence doesn’t recognize the laws in their state of celebration, and they don’t live in the state where they got married. Not only can they not reap the state-level legal benefits of marriage, if they want a divorce, they will find themselves wedlocked.

Just as McLaughlin marked the beginning of the end for institutionalized racism via anti-miscegenation laws, the U.S. Supreme Court’s finding that the federal DOMA was unconstitutional under the Fifth Amendment in Windsor in June is simply history repeating itself. In the nine months that have followed, federal courts in state after state have found state-level same-sex marriage bans unconstitutional. As of this publication, 33 states ban same-sex marriage (with Michigan presently being heard in court), but within three years of Windsor, I believe the Supreme Court will have decided the matter at the national level, just as it took three years for Lovingto go before the Supreme Court. With multiple same-sex marriage lawsuits currently on the books for Pennsylvania, the first of which will most likely be Whitewood v. Wolf, No. 13-1861-JEJ,scheduled for trial June 9 (coincidentally during Philadelphia Gay Pride) in Harrisburg, Pa., becoming wedlocked hopefully won’t be an issue for Pennsylvania much longer, but until same-sex marriage is recognized nationally, this very real legal quagmire will persist.

Read more: http://www.thelegalintelligencer.com/id=1202646166788/Residency-Requirements-Leave-Couples-%27Wedlocked%27-in-Pa.#ixzz2vaJpIAcK

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