Supreme Court Gay Marriage Ruling: Why Decision Matters For LGBT Divorce Rights

Six months after her 2008 shotgun wedding at a Massachusetts courthouse, Rhode Island resident Lisa Lunt found herself fighting for a different kind of gay marital right: the right to divorce her wife. At the time, Rhode Island didn’t recognize same-sex marriages and therefore wouldn’t honor a divorce either. The couple's only direct option involved a U-Haul, a new house and a year in Massachusetts to establish residency.

A Supreme Court ruling on gay marriage this month could expand civil rights for hundreds of thousands of LGBT couples, including the right to divorce. Since Massachusetts became the first state to legalize gay marriage, 11 years ago, same-sex couples have been crossing state lines to get married. But just as with hetero couples, things don't always work out, and when they don't, getting divorced in a state that doesn't recognize your marriage can be impossible. A Supreme Court ruling requiring states to recognize same-sex marriages would also be a landmark decision for couples seeking equal divorce rights, legal experts said.

“If you are a couple whose relationship is truly over and done with, it is extremely important to be able to leave the marriage,” said Susan Sommer, director of constitutional litigation at Lambda Legal, a nonprofit that supports equal rights. It allows you to move on emotionally, “and it also terminates hundreds and hundreds of reciprocal legal rights, protections, but also obligations,” Sommer said.

The number of states that recognize same-sex marriages and have legalized gay marriage has skyrocketed since 2004. Thirty-six states plus the District of Columbia now allow gay couples to get married. Alabama’s status remains unclear because of conflicting state and federal court orders, which leaves 13 holdout states. About three-fourths of the U.S. population currently lives in a state where same-sex marriage is legal.

Public opinion toward gay unions has changed drastically, too, and 57 percent of Americans now approve of same-sex marriage. That’s nearly a complete reversal from 2001, when Pew Research first started measuring popular opinion on the subject and disapproval was 57 percent versus 35.

The divorce rate for same-sex couples compared to that of different-sex couples is disputed. Over the past several years, many reports have indicated that the rate is perhaps lower. However, observers note that those estimates include a wave of long-term couples that have been waiting to get married and are unlikely to get divorced that cushion divorce rates. Some have put the divorce rate closer to equal between the two groups.

When Lunt started looking into how to get a divorce in a state that didn't recognize her marriage, several people at the time, including Rhode Island state lawmakers, suggested she move to nearby Massachusetts for a year. One even recommended she get a P.O. box to establish residency.

“I find it really condescending that people would suggest something like that,” she said. “Who else would have to pick up their ties from their community, and who has the resources to do that?”

She decided to fight it and attended legislative hearings to push for a “gay divorce” law. But critics of gay marriage weren't keen on providing LGBT couples a pathway to divorce, she recalled.

“I went to several hearings, and there were some people who were really rabid. They were foaming at the mouth -- it was vile,” she said. “It’s surprising that people were so vehemently opposed to us disbanding, and they were the same people who didn’t want us together to begin with.”

She eventually gave up on the divorce bill. After Rhode Island passed gay marriage in 2013, she finally got her divorce.

For other LGBT spouses looking to get a divorce in states that don't recognize gay marriage, real concerns persist. If a gay married couple separates in their home state that doesn't recognize their marriage, it doesn't make much of a difference locally. But the marriage counts when the couple crosses lines into a state that has legalized same-sex marriage. The U.S. federal government also recognizes the unions regardless of the position of the couple’s resident state.

“The reality of people's lives is that they are constantly traversing state borders, and under the current state of law, they have marriages that are sort of flickering on and off in the eyes of the state as they cross back and forth,” Sommer said.

That can be a problem in a number of ways. In a state that doesn’t recognize the unions, weight is given to one spouse over another in child custody disputes. A spouse may lay claim to the pension of the other or to property if it is held in a different state that allows same-sex marriage. Couples are required to file joint federal taxes, though they may not be in touch, know where the other lives or have the other’s social security number. Major medical decisions might be delegated to an estranged and angry spouse. The individuals also can’t get remarried to a new person.

“It’s a major issue for some people. I’ve gotten calls from people like that who, you know, they got married and shortly thereafter, for whatever reason, realized that it was a mistake and they had no way out,” Lawrence Jacobs said, who does estate planning for same-sex couples in the Washington metropolitan area. “That means they are legally bound to that person. That person may be entitled to a share of their assets when they split up in the future. They couldn’t marry anybody else because that would be bigamy. They’re trapped, and if the only way you could get divorced would be to move to another state, well, that’s not much of a remedy.”

Soon after Carole Kern ran to Massachusetts to get married to her girlfriend of six months in 2009, things started to go wrong. She had always wanted to get married, and was excited to do it, but she said the relationship became abusive fast and she needed to get out. They separated, and Kern tried to get a court in her home state of Pennsylvania to grant a divorce, but the judge denied the request. She had no idea when she got married that a divorce would be so difficult, and she couldn’t move all the way to Massachusetts.

“It made me feel like there was a big question mark over my life. Like, what if I wanted to marry someone else? Would I be able to? Would I be able to go to another state and get married again? You know, that was an issue,” Kern said. “Just filling out paperwork: Are you married or single? Something as simple as that. Technically, I am married, but legally, in Pennsylvania, I’m not.”

Pennsylvania legalized gay marriage last summer, and Kern recently finished her divorce proceedings.

For other couples still stuck in states that don't recognize gay marriage, the Supreme Court ruling could be their best shot at a new start. Many believe that the Supreme Court will side with the growing support for gay marriage.

Elizabeth Schwartz, an LGBT family and estate lawyer in Florida, said that she and her wife specifically chose Vermont to tie the knot years ago, even though they were vacationing in Massachusetts at the time, because Vermont is one of a few states that offers non-resident divorces for same-sex couples if they are wed there. She hopes there will soon be an easier way for gay couples to get a divorce without having to hop on a plane.

“I don’t think -- even people who are against marriage equality -- no one is, I think, expecting a loss here,” she said of the Supreme Court ruling. “I imagine that [the court is] probably going to do the right thing, and I think that’s going to resolve this issue for everyone.”

If it does, that’ll mean real relief for LGBT couples, advocates said.

“This isn’t theoretical,” Jacobs said. “We’re talking about the lives of real people and couples."