For a brief period in 2008, California was only the second state in the country (after Massachusetts) to grant marriages to same-sex couples. The law was quickly overturned by the passage of Proposition 8, however, and the issue was up in the air for years as Prop 8 wound its way through the judicial system all the way to the U.S. Supreme Court. Since the court’s decision in June, same-sex marriages are again permissible in California, and now a dozen other states have laws on the books granting and recognizing gay marriage. Many other states still do not allow same-sex marriage, however, and some even go further to clearly state that a same-sex marriage conducted in another state will not be recognized as valid in their state.
While California was one of the few states granting same-sex marriages, many gay and lesbian couples traveled to the state to get married and then returned to their home state. It is now five years later, and, not surprisingly, some of these couples are seeking a divorce. The problem is that since the state they live in does not recognize their marriage, it is not likely to grant them a divorce either. They could travel to the state where they got married to get a divorce, but most states have a residency requirement of six months or more before a person can file divorce, and who can afford to pick up and move to another state for six months just to establish residency? A couple in Mississippi is currently in this situation.
Fortunately, this issue has been addressed in California. Back in 2011, the California legislature amended the law to excuse the residency requirement for a couple married in California who live in a state that does not recognize the marriage or will not dissolve it. While this is great news for couples needing to divorce, the California courts on their own website recognize that the courts may still not have the jurisdiction to rule on other matters in the divorce, such as the division of property and debt, partner support, and child custody.
Even if the court cannot rule on these issues, they can still be decided by the couple together and then written into a binding agreement, which should be recognized in any state. If the couple entered into a prenuptial or postmarital agreement, then the terms of that agreement will control as to the property settlement and spousal support issues. As to custody, if a couple have children together but only one spouse is the biological parent, it is important for the other parent to formally adopt the child to make sure that parent has custodial and parental rights. If these issues are contested and no agreement is in place, it is difficult to know how the courts in any state will deal with such matters.