A recent article noted a divorce case that has been pending for more than four years. Most divorces happen much quicker than this, but the state in which the couple now resides does not recognize same-sex marriage or divorce, so these two men might be waiting for much longer for the state court to acknowledge their separation.
Massachusetts became a pioneer in the realm of family law when it allowed same-sex couples to marry, and many flocked to the state just for this purpose. However, when those people returned home or moved from the state, they may have found their marriage was not as universally recognized as they had hoped. There is no guarantee that other states will recognize same-sex marriage benefits, or even a divorce. This is the issue facing the couple in the article who married in Massachusetts in 2006.
Upon filing a petition to divorce in 2009 in Texas, the state's attorney general intervened to challenge the divorce on the basis that a constitutional amendment that bans same-sex marriage also applies to divorce. A district court judge disagreed and agreed to hear the case while also ruling the amendment unconstitutional. The case has since risen to the Texas Supreme Court, which will soon be receiving briefs from both sides.
Since heterosexual people are not the only ones who experience marital difficulties, Massachusetts has also had more time than most states to ponder and adapt to the particular stumbling blocks a same-sex marriage can pose. Should the Texas case end in favor of the former same-sex couple, the same issues will likely need to be dealt with soon thereafter.
For example, property division can be tricky due to the incongruous landscape of state and federal tax treatment of same-sex couples. The federal Defense of Marriage Act prevents some divorcing same-sex partners from claiming their share of pensions or Social Security benefits, so parties and courts may have to work around these issues in their separation agreements.
Whether the Texas court will follow the example set by Massachusetts is yet to be seen, but fortunately, Massachusetts family law attorneys are way ahead of the curve when it comes to the unique situation of same-sex marriages.
Source: Dallasvoice.com, "4 years later, divorce-seeking gay Dallas couple J.B. and H.B. remain in 'limbo'," John Wright, Jan. 16, 2013