’Til Death Do You Part . . . and This Time We Mean It: Denial of Access to Divorce for Same-Sex Couples
Colleen McNichols Ramais | 2010 U. Ill. L. Rev. 1013
During the last decade, the debate over same-sex marriage has re-sulted in the increasing recognition of same-sex unions in several states as well as specific prohibitions against the recognition of such unions in other states. Many gay couples have travelled from their home states that do not allow same-sex marriage to be married in states that do. But if these couples later decide to separate, they are often confronted with an unanticipated problem: residency requirements in most states’ divorce laws mean that they cannot simply go back to the state in which they were married to institute divorce proceedings and they cannot dissolve their bond in their home state if that state does not recognize their union as valid to begin with. This Note explores the issues posed by this dilemma, proposing that it could be solved if all states provided a forum for dissolving same-sex unions, even if they do not choose to recognize them as valid marriages.
The author begins by outlining the current state of the law regard-ing same-sex relationships in the United States. Federal and state laws passed in the last few years have prohibited or allowed recognition of same-sex unions; this causes jurisdictional issues that arise from residen-cy requirements in divorce laws. The Note provides an analysis of the conflict-of-law problems posed by same-sex couples seeking divorces in states that do not recognize their marriages and the constitutional issues raised by court decisions refusing to grant these couples divorces. Su-preme Court due process decisions regarding impermissible restrictions on access to divorce should make such refusals unconstitutional. In con-clusion, states have an obligation to provide a forum for dissolution of same-sex marriages contracted elsewhere. This forum can be provided without forcing states to recognize the validity of such unions.