Kajko, Weisman & Colasanti, LLP

Court rules that state can provide same-sex divorces

A recent court ruling from another state may be of interest to same-sex Massachusetts couples considering divorce. The ruling will allow for that state to recognize and perform same-sex divorces, even though the state will not allow same-sex marriages to take place there until January of next year.

The ruling specified that state courts would only withhold recognition of a valid out-of-state marriage if that marriage were "repugnant" to the state's public policy. The court determined that same-sex marriages did not meet that threshold.

The court's ruling arose when a same-sex Maryland couple filed for divorce in that state. They had married in California when that state still permitted same-sex marriage. The judge refused to grant the divorce, however, and the couple appealed the decision.

Maryland law provides for recognition of valid same-sex marriages performed in other states, and has offered state benefits based on such marriages. Supporters of same-sex marriage believe that the ruling will mitigate the possible effects of a potential referendum on the same-sex marriage, which could be on that state's ballot this fall. Even if the referendum effort were successful in precluding same-sex marriage, that state would still recognize same-sex marriages from other states because a referendum cannot overturn a Court of Appeals decision under that state's law.

Under Massachusetts divorce law, same-sex marriage receives the same treatment that all other marriages do. To divorce, both parties in the couple need to be residents of Massachusetts. There are exceptions to this requirement, however, such as if the plaintiff has one year of residency or if the cause of the divorce happened in the commonwealth and the plaintiff resided there when filing for divorce.

Source: The Washington Post "Md. high court permits same-sex divorce from other states, even if Md. doesn't have gay unions," May 18, 2012.

Source: FindLaw.com, "Massachusetts Legal Requirements for Divorce."

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