Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Do Same-Sex Couples Have The Right To Get Divorced In A State That Does Not Legally Recognize Their Marriage?

The fundamental right to marry is deeply rooted in our nation’s constitution. However, up until this very day not all couples are entitled to and enjoying this basic fundamental right. Over the years, nineteen states have come to recognize legal same-sex marriage. Unfortunately, the number thirty-one is the number that sticks in most people’s heads. Thirty-one is the number of states that still have a ban on same-sex marriage to this very day. The fact that not all states are on board with gay marriage has led to an immense amount of litigation, as you can imagine. However, what many people do not realize is how much more litigation has been created among the states. 

Let’s take Sally for example. Sally and her partner Jane have officially been able to marry in New Jersey since same-sex marriage is legally recognized. However, Sally and Jane realize marriage is not what they wanted after all. So what do they do? They do what any other couple would do that wants to call it quits. Get a divorce! Yet, here’s the twist. Since married in New Jersey, Sally and Jane have relocated to Florida. Now, Florida is one of the thirty-one states that has a ban on same-sex marriage. Will Sally and Jane be able to get a divorce there if their marriage isn’t even recognized? This is a huge dilemma that courts are beginning to face. In particular, a recent case was actually decided upon illustrating this very scenario. Let’s explore. 

Kathleen Vacca and her partner were married in New Jersey once gay marriage became legally recognized just last year. The couple, now though, is trying to get a divorce in Manatee County, Florida. Unfortunately for Kathleen and her partner, Florida does not recognize same-sex marriage yet, so the state will not let the court grant the divorce. Kathleen, upon hearing the news, could not believe that her emotional marriage roller coaster was to pick up where it left off. She stated in a recent article “it’s ironic that as people now fight for marriage equality here [Florida] I am now trying to have divorce equality.”

Kathleen is not the only one who is experiencing such difficulties. She, like many gay couples, were under the impression that once they could be legally married, any state that had jurisdiction over them could grant them a divorce. However, this is not the case. Particularly, Florida courts are continuously refusing to grant divorces to same-sex couples. The courts do not recognize gay marriage there, so how could they grant divorces to marriages that aren’t even legal in the state? This is the problem, for Kathleen and many others. 

The main argument that Kathleen raises is the inconvenience of returning to New Jersey just to have the divorce granted. The issue and her argument is like a choice of forum case. If one forum is too inconvenient for a party to a lawsuit, then the case shouldn’t be tried in that forum. Similarly, the burden of traveling to New Jersey is immense for Kathleen. She not only has a full time job in Florida that she cannot leave, but also does not have an endless supply of money to travel back and forth and take time off.

While Kathleen’s case remains unsettled, she is not alone. I cannot stress enough the importance of consulting with this New Jersey divorce attorney if you find yourself in this situation. It is vital to know what courts you can bring a divorce action in if you are seriously contemplating one. For more questions, please contact my New Jersey divorce and family law firm today.