Gay Marriage Is Now a Threat to Straight Divorce

At a panel titled "Marriage Meets the LGBT Family" last weekend at Lavender Law, an LGBT legal conference, a panelist said, "The best part of gay marriage is gay divorce." Of course, she was speaking from the perspective of a family law attorney, and a happy marriage isn't terribly engaging for a family law attorney. Divorce, that's when things get exciting. And gay divorce is at its most exciting when it can't happen at all.

Such a case is developing in Texas, where two men, known only as J.B. and H.B., filed for a divorce from their Massachusetts marriage, simple enough, scores of married folks file every day. Except, these guys were denied the divorce decree because, get this logic, granting a divorce requires first acknowledging the existence of a marriage, and Texas refuses to do that. So the men sued, and they won the right to get divorced (along with a ruling declaring Texas' ban on same-sex marriage unconstitutional). But just this past Tuesday the Texas Court of Appeals overturned that ruling and the language of the opinion highlights a particularly depressing state of affairs, for marriage and divorce.

“The parties lack standing to file a divorce because they're not married,” was the argument from the Texas attorney general's office. And the court bought it. In the court's opinion, the Massachusetts license can be given no legal weight because Texas public policy prevents a court from recognizing anything relating to a same-sex marriage. Divorce is a "right" of marriage, and same-sex couples don't get marriage rights.

The court continues, "Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law."

So even though the result of the divorce proceeding, namely one less same-sex marriage, is in line with Texas public policy, the small sliver of time for which a court would have to recognize the marriage in order to end it is simply repugnant.

Well, I guess poor J.B. and H.B. will have to go back to Massachusetts to get divorced. Not so fast! This is where things get exciting! Massachusetts has no residency required to get married, but it does, like all states, have a residency requirement to get divorced. In Massachusetts it happens to be one year. Some places, like good old Nevada, require fewer days to become a resident and are therefore popular "quickie divorce" states. But, in order to get a quickie gay divorce, J.B. and H.B. would have to find a state that not only has a low residency requirement but is also a state that will recognize their marriage. And if they don't get a divorce, and one of them tries to remarry, that's called bigamy, folks, and we hate that about as much as we hate gay marriage in this country. It's a crime in many states. Damned if you do, damned if you don't.

Really? Just when a gay couple wants to join the massive heterosexual ranks of divorcees, we are denied that right as well? We can only get married in a few states to begin with, and in the 35 or so states that don't recognize our marriages, we are ironically stuck in those marriages?  Gay marriage isn't just a threat to the sanctity of marriage, it's also now a threat to the sanctity of divorce?!

This logic makes my happily married head spin.

Well, you've been warned. Don't go out of state to get a same-sex marriage if you live in Wisconsin, and only ever move to a recognition state. By that, I mean a state that will recognize your marriage in case you ever want to end it.

Photo credit: banjo d