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Divorce Equality

A woman called me the other day who wants to get divorced.  Which initially sounded fine, since that’s what I do.  But upon further discussion, turns out it’s not fine.  Turns out I can’t get her divorced and neither can anyone else: she’s stuck in a marriage that she and her spouse both want to end, with no feasible way out.

Sound like the eighteenth century?  Or Saudi Arabia perhaps?  Not so. To the contrary, this woman suffers from a thoroughly modern problem.  The problem is that her spouse is a wife, not a husband.  This woman married her partner in Vermont – can’t you just picture the quaint inn, the rolling green hills dotted with charming black and white cows, the wedding package so appealing to same sex couples in that most progressive state of all – and after the wedding they packed up and came home to Philly.  Therein lies the problem.  Pennsylvania does not recognize their marriage as valid, thanks to our “Defense of Marriage Act.” Not only does this nasty law passed by our homophobic friends in Harrisburg back in 1996 prohibit same sex marriage in Pennsylvania, but it also provides that a same sex marriage entered into in another state is “void in this Commonwealth.”  And if Pennsylvania doesn’t recognize you as being married in the first place, our courts have no authority to divorce you.

So why not tell my would-be client to go back to Vermont to get divorced?  Because she can’t.  Because although Vermont allows non-residents to get married, the opposite is true when it comes to divorce: you have to live there.  And this is not unique to Vermont – it’s the case across the board. There is no state in the country which requires residency as a prerequisite for getting a marriage license.  In other words, you can drive to Vegas from anywhere at all and get married in the Elvis Chapel. Which is why gay and lesbian couples have flooded into Vermont and Massachusetts and New Hampshire and the rest of the states where they can get married – for the weekend, that is.  But like Vermont, all states require that at least one spouse be a resident in order to file for divorce. While “residency” is defined differently by different states, it still means someone’s got to live there for some definite period of time – in the case of Vermont, for six months before a divorce complaint can be filed.

What’s my would-be client to do?  She’s stuck, unless she or her wife a) move to a state that will recognize their marriage; and b) live there for long enough to satisfy the residency requirement so they can file for divorce.  If they don’t do this and one of them wants to marry someone else?  She can’t.  Because she’s still married.  The irony is overwhelming. Gay people fought so hard for marriage equality and now, when some of those marriages don’t work out (see, they’re not so different from straight people!) they need to fight for the right to get divorced.

I’m confident that within my lifetime the U.S. Supreme Court will rule that it is unconstitutional to prohibit same sex marriage and this ridiculous state of affairs will finally go away.  But until then, some gay friendly state – maybe Vermont? – should consider eliminating their residency requirement for divorce.  There’s some serious pent up demand out there.