How Do Same Sex Married Couples Divorce if the State They Live in Doesn’t Recognize Their Marriage and It Fails?

Posted by on Aug 18, 2014 in Divorce, Family Law, Marriage Equality

decree of divorce

There is an old adage that it is should be as difficult to get married as it is to get divorced.

Well, same sex spouses who were married in a state that recognizes same sex marriage but reside in a state that doesn’t may literally have to move in order to obtain a dissolution of their marriage.

For example, take two spouses who married in Connecticut and reside in Texas.  The Texas court has jurisdiction because the spouses live there, but its courts can’t grant them a divorce because Texas doesn’t recognize the marriage.  On the other hand, Connecticut courts do not have jurisdiction to grant the couple a divorce — even though they married there — because neither spouse meets Connecticut’s residency requirement.

(Kristen Marcroft has written before in more detail regarding how Connecticut courts can’t typically grant divorces to same sex couples who married here, but who reside in other states.)

The U.S. Supreme Court’s Windsor decision that expanded many federal benefits to same sex married couples was a major step towards full equality.  The Court ruled that the federal government must recognize legal same sex marriages, but did not go so far as to rule that lesbian and gay couples can get married in any state.

Until that happens, same sex married couples who live in a state that does not recognize their marriage are stuck sitting in limbo — including when their marriage fails and they wish to seek a divorce.

I have written before about how, short of another Supreme Court ruling, same sex married couples cannot use the Full Faith and Credit Clause of the United States Constitution to compel non-recognition states to recognize their marriage.  But is there a legal theory under which a same sex couple seeking a divorce in their non-recognition home state could bring an action under the Full Faith and Credit Clause?  Possibly.  In 1942, the Supreme Court held in Williams v. North Carolina that the Full Faith and Credit Clause has a limited application to divorce.

That said, as a practical matter, in order to obtain a divorce at least one spouse has to establish residency in a state that recognizes the marriage, and therefore can grant a divorce.

In Connecticut, pursuant to General Statutes Section 46b-44, “a complaint for dissolution of a marriage or for legal separation may be filed at any time after either party has established residence in this state.”  Further,

A decree dissolving a marriage or granting a legal separation may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; or (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint; or (3) the cause for the dissolution of the marriage arose after either party moved into this state.

Residency requirements vary from state to state.


As an aside, the below is a spot-on prediction from Justice Frankfurter in his Williams concurrence back in 1942.

The Constitution of the United States [] reserves authority over marriage and divorce to each of the forty-eight states. That is our starting point. In a country like ours, where each state has the constitutional power to translate into law its own notions of policy concerning the family institution, and where citizens pass freely from one state to another, tangled marital situations like the one immediately before us inevitably arise. They arose before and after the decision in the Haddock case . . .  and will, I daresay, continue to arise no matter what we do today. For these complications cannot be removed by any decisions this Court can make — neither the crudest nor the subtlest juggling of legal concepts could enable us to bring forth a uniform national law of marriage and divorce.