As the war over gay marriage rages on, a unique legal problem has surfaced: gay divorce.
A small number of states allow homosexual marriages while others expressly ban it. Arizona law, for example, explicitly refuses to recognize a marriage between two members of the same sex.
It is not at all uncommon for a same-sex couple that lives in a state that bans gay marriage to travel to a state that authorizes it, then get married, and return to the couple’s home state. The problem comes when the couple decides to divorce.
Every state has a residency requirement in order to get divorced, meaning that you must live in a state for a certain amount of time before the state is allowed to hear your case. So if a gay couple gets married in a state that recognizes gay marriage, but is domiciled in a state that doesn’t, they can’t get divorced in the state that married them. But the state of residence will likely not hear the divorce because the state refuses to acknowledge the marriage in the first place.
This leaves the couple in legal limbo and frankly generates confusion in the legal community. For example, in Ohio, trial judge Donald Cox granted a divorce between two men. Days later, Ohio judge Jim Mason refused to grant a divorce between two women, citing Ohio’s constitutional ban on gay marriage as precluding the state’s ability to recognize the marriage.
This also opens up questions about polygamy, a criminal offense. If a gay couple gets married, then can’t get divorced, but decides to remarry, have they committed a crime?
Clearly these are issues that will need to be resolved amidst a slowly growing community of married homosexuals and the section of the legal system that addresses family law.