Legal Minute
Same Sex Marriage….
and Divorce
By Rachel Platt
The Platt Law Firm
[email protected]
O
n June 26, 2015, the Supreme Court, in the case
of Obergefell v. Hodges, ruled that the Constitution
requires that same-sex couples be allowed to marry
no matter where they live and that states may no longer
reserve that right only for heterosexual couples. Not only
do gay and lesbian couples now have the right to marry,
but they are also afforded the same benefits that oppositesex married couples receive such as getting social security
benefits, filing taxes jointly, and being able to get divorced.
Prior to this decision, if a same-sex couple wanted to marry,
they had to travel to a state that would allow them to get
married. However, if they resided in a state that did not
recognize their marriage, there was no avenue for them to
get divorced. States have residency requirements that outline
how long a person must be a resident of state before being
able to file for divorce. So, even though gay and lesbian
couples could travel to a state to get married, it was very
difficult for them to get divorced because they could not meet
the residency requirements. Some states and jurisdictions
waived that requirement if you were married in their area, but it
was still very difficult for people to get divorced. However, with
this new Supreme Court ruling, now if a person was married
in any jurisdiction, their marriage is legal in all jurisdictions.
Thus, every person who has been married, regardless of
where, is entitled to a divorce and to the protections that the
divorce laws provide.
The divorce laws provide many protections and procedures
when people wish to go their separate ways, such as the ability
to divide assets regardless of whose name they are, the ability
to deal with real property, again regardless of whose name
it is in, and the ability to seek support from a spouse. All of
these protections were not available to individuals who were
in long-term committed relationships that were not allowed
to legally marry in their home states. By way of example
consider the following factual scenario: Two women have lived
together for 20 years in a state that will not recognize their
marriage obtained in another state. They have two children,
and one of the women did not work and stayed at home to
raise the children while the other worked. They have lived in
the same home for the last 15 years, but it is in the working
woman’s name, and she is the only one who contributed
to the mortgage. The working woman was able to put a
significant amount into her retirement account, while the other
woman has not saved up anything for retirement. Now, the
two women wish to go their separate ways. If they are not
married, the house that they have lived in belongs solely to
the woman whose name is on the house and who has paid
the mortgage. The non-working woman is not entitled to any
support or any of the other woman’s retirement. However, if
they have a legal, valid marriage, the retirement account can
be equitably divided (regardless of