Same-sex marriage ruling creates divorce dilemma, says Rose Law Group family law attorney Kaine Fisher

divorceBy Erica Goode | The New York Times

Adam Cardinal’s wedded life began happily in New Hampshire, where same-sex marriages are legal. It went sour three years later in Florida, where they are not.

Mr. Cardinal, who lives in Fort Lauderdale, separated from his husband several months ago. But the couple cannot get a divorce because, in the eyes of Florida officials, their marriage does not exist.

Returning to New Hampshire to sever the bond is not an option either. Although marrying can be accomplished with a brief visit there, a divorce requires residency in the state for at least a year.

Mr. Cardinal cannot remarry — to do so would make him a bigamist in states like Massachusetts or New York that recognize his previous nuptials. And although he and his husband did not combine their assets, the lack of an official document certifying the end of their marriage carries financial risks.

“I didn’t realize this could potentially be an issue, that we couldn’t divorce when we wanted to,” Mr. Cardinal said. “That was really upsetting.”

Statement by Rose Law Group family law attorney Kaine Fisher: “Consider a situation where a same-sex couple legally gets married, let’s say for instance in California, and then adopts a child in that state.  Then, the couple and its child moves to a state, which does not recognize same sex marriage, let’s say for instance Arizona.

“I find it interesting that even if the couple establishes the requisite domicile here in Arizona , then cannot get divorced here (at least not at this point), and the Arizona court cannot enter orders regarding legal decision-making, parenting time and child support.  They have a valid marriage, are now receiving certain federal benefits in light of the Supreme Court’s ruling, but cannot untie the knot.

“It does not make sense to force same-sex married couples to move back to the marrying states or some other state that recognizes same-sex marriages, to move on with their lives.  This just seems to be unduly burdensome. This will all have to be sorted out in the months to come, and I anticipate much in the way of litigation surrounding this dilemma.

Continued:

If you’d like to discuss family law, contact with Kaine Fisher, director of Rose Law Group Family Law Department, kfisher@roselawgroup.com.

 

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