Wednesday, March 5, 2014

Gay Divorce, A Huge Problem For Kith and Kin

I figure as seniors, you might have friends and relatives who are going to be affected by an aspect of gay rights law that has been flying under the radar. I am not going to discuss gay marriage. That is already underway and is probably going to become more so.  No, that is not the problem. The problem is gay divorce, that gays who marry will have trouble getting one most likely. 

When you realize that roughly 10% of the population is gay, this problem takes on added oomph. I will try to present this as simply as I can but it is not simple law.

When you get married, you need to get a wedding license. There might be a waiting period for a wedding license, a couple of days perhaps, but nothing that is a big deal. You take your license and go get married by someone authorized to marry you under that state's law. The problem is that if you subsequently want a divorce, you run into a huge problem with the residency waiting period. First you have to find a state that recognizes gay divorce. But you can't just go there and file for one. No, you have to look at its statute and see how long you need to reside in that state in order to file under its divorce law. This is not going to be a couple of days. It may well be six months or even longer. The exact time period varies from state to state. Very few people are able to uproot everything and take up residency in a different state for the sole purpose of getting a divorce.  What do they do about jobs, housing, children and so forth? Such an undertaking is godawful expensive.

So isn't there federal divorce law?  No. Divorce law is state law and is different in all 50 states.  This is where a little federalism could be helpful but it doesn't work that way. Under all fifty states you need to file for divorce in the state where you reside.

Well, how about going back to the state that allowed gay marriage? Just because the state allowed gay marriage doesn't mean it allows gay divorce. Plus it will still have a residency requirement for divorce which you will need to follow. Your getting married in that state did not establish residency there. You reside where you are currently living and working.

Why am I not hearing about this in the media? There has been some media coverage but not a lot. This is because so far the gay couples getting married have been mainly long time committed partners. As they become more like the heterosexual population, which sometimes gets married on whim and impulse, gay divorce will mushroom, just like straight divorce did.

What's the Supreme Court doing about this? Right now, nothing. But there are lower court and appellate cases being heard on this issue. So far the United States Supreme Court has not agreed to review any cases regarding gay divorce.

What's the difference between a gay person and straight person for this kind of law?  A straight person can get married and divorced in all 50 states. A gay person can get married in a few states and divorced in a few states but they may not even be the same states. So a straight person can get divorced right where he or she is currently residing. A gay person may have to move to a state which allows him or her to obtain a divorce.

For the purposes of my blog, it is a given that gay rights do exist and that such rights will likely and should expand. All comments to this blog are moderated by me and no flame wars will therefore be allowed to commence here.

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