Marriage equality is happening at a painstakingly slow pace and, because of that, same-sex couples have flocked to states when they approve marriage-equality laws. In doing so, they are running toward legal complexities that not many are aware of but that have serious consequences.
Owing to the Defense of Marriage Act enacted under President Clinton, same-sex Pennsylvania couples who marry in another state, for example Massachusetts, are not legally recognized as married under Pennsylvania law. This is a sad but binding reality because under DOMA, marriage is defined federally. This definition gives states the sovereignty to disregard state-held definitions of marriage and states, in “any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” This definition also leaves same-sex couples with some 1,138 fewer federal rights, protections and benefits than their heterosexual married counterparts.
The residency requirement is often overlooked by same-sex couples when they choose to marry out of state. Enthusiastic couples who tie the knot in states that allow it rarely consider that, because of DOMA, “out of state” divorce is not an option for them. That is, if the marriage doesn’t work, the couple is unable to dissolve the legal relationship because all states recognizing marriage equality have a residency requirement to file for divorce.
If there is a residency requirement for divorce, a person may only file for divorce or dissolution in the state of their marriage, and only if they meet that state’s residency requirements at the time the petition or complaint is filed. In most cases, the residency requirement is 12 months, or in some cases six months. As such, married same-sex couples filing for divorce are learning after much legal frustration that their home states will not grant them a divorce unless one or both of them move to the state that granted them the marriage license: Even though they work and pay taxes in Pennsylvania, the Commonwealth does not actually recognize their union as marriage. The reality is that the state that granted them a marriage licensed lacks the power to grant them a divorce on account of the residency requirement and DOMA.
There is hope, however. In California, couples who had wed and later sought to separate could only divorce initially if they met the state’s residency requirement. While the right to gay marriage in California was later revoked, the laws were changed to remove the residency requirement, so it’S still possible for those who got married and don’t live in the state to dissolve their relationship. Delaware has also included provisions to make residency requirements less of an issue. The District of Columbia may pass the Civil Marriage Dissolution Equality Amendment Act of 2011,which would allow same-sex couples who married in the district but have moved away to divorce without having to return to fulfill a six-month residency requirement. Lastly, as Maryland looks to begin marriage equality next year, it’s likely it will do away with a residency requirement altogether. Once one state does so, other states will follow and, hopefully, states that have already passed marriage equality will follow California and Delaware’s lead.
If you and your partner are looking to marry outside the state in which you live, be thorough in your research and decision process, as same-sex couples face many additional challenges. Things to consider:
— Whether the state you are getting married in has a residency requirement in order to file for divorce or dissolution. At least one spouse must have lived in the state for one year before commencing a proceeding to end the marriage.
— Understand that if your home state does not recognize marriage, the benefits granted will not apply in your home state.
— Understand the consequences regarding how your jurisdiction treats same-sex marriage if you are looking to adopt a child that does not permit placement with same-sex couples.
— If you are already registered as domestic partners, seek legal counsel to help you understand the legal consequences of marrying in another state.
Before deciding to marry outside of your state, consider these obstacles. Most importantly, set legal outlines to curb the difficulties posed by the potential dissolution of your relationship. Meeting with an attorney to develop a cohabitation agreement is a good start; while you may regard your partner as family, the law in our Commonwealth does not. The same-sex divorce dilemma is a frustrating reality of the inequality that exists because of DOMA and, until it is repealed, the residency requirement is a huge burden on same-sex couples and their families.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com