“Imagine you’re a same-sex couple married in Washington, D.C., and taking the Amtrak from there to Boston,” says Susan Sommer, director of constitutional litigation for Lambda Legal. “You’re married in D.C.; everything’s fine. Next stop Maryland, which until 2010 wouldn’t treat you as married but now would. You get to Delaware, which has a civil-union law, so it treats you not as married but as a civil-union couple. Then you get to Pennsylvania, which has not been recognizing these out-of-state marriages as anything at all, and not allowing divorces, so while there you are potentially a legal stranger to your spouse. That’s not a good part of your trip. New Jersey recognizes your marriage only as a civil union. Then, phew, you’re in New York and you’re married again; same in Connecticut. Then you get to Rhode Island: a civil-union state where the attorney general has said you are married and the government is treating you as married, but the courts have said we won’t divorce you. Finally, you reach Massachusetts, and you can breathe a sigh of relief: You’re married. And you can divorce. But it’s a very complicated legal ride.”
Sommer has been working for marriage equality for years, but a surprising part of her work has been getting married couples their divorces. In the process she has come to see divorce as an “incredibly important spearhead” or “wedge” to force the door open for marriage. Cases she argued in New York in 2008 and in Maryland in 2012 established the right of couples legally married elsewhere to divorce in those states—even before they allowed gay marriage themselves.
But a side effect of that piecemeal progress has been the complicated legal ride Sommer describes. And it’s not an abstraction. “Here’s a typical case that has come up in Texas, Wyoming, everywhere,” she says. “A couple that in happy times together, in the blush of love and the excitement of the availability of marriage in some jurisdictions that have no residency requirements, get married, may even throw some big party with family and friends, then return to lead their boring lives as married couples. And then, no different from what happens in heterosexual marriages”—Sommer herself is married to a man—“a certain percentage may split apart. But, by and large, even if states have no residency requirement to marry, they do have a residency requirement to divorce”—meaning that if you live in Georgia but married in California during its twenty-week “marriage window” in 2008, you can’t get divorced in Georgia, which does not recognize your marriage anyway, and you probably can’t get divorced in California either, unless you take up residency there, perhaps for as long as a year. The vast majority of couples can’t afford or even arrange that, especially if they’re feuding.
“It gives wedlock a whole new meaning,” says Sommer. “They’re trapped.”
If this sounds familiar, that’s because the situation resembles what many straight couples faced in trying to end their marriages before the wave of recent reforms that standardized no-fault divorce throughout the country. Same-sex couples, Sommer estimates, are operating in a divorce environment similar to the one that existed for heterosexual couples a hundred years ago.
“And it has terrible and profound consequences for them,” she continues. “First of all, you can’t enter into a new marriage, or for that matter a new civil union or domestic partnership. So you can commit bigamy and might be subject to criminal prosecution.” Such “walking bigamists,” accustomed to the more casual ending of past gay relationships, may not even realize they need a divorce. “Or let’s say you and your spouse live in Virginia but got married in New York. You split up but don’t get divorced, because you can’t. One of you steps foot in D.C. because you commute there for work. While you’re in D.C. you are married to that other person even if you haven’t spoken in years. And let’s say you’re in an accident that doesn’t allow you to make end-of-life decisions; that spouse is likely the one who has the right to make decisions for you.
“Or say you never bothered to make wills, and you die. It is that spouse who inherits your property. And if you have made a will, giving your estate to your new partner, the old one is probably entitled to the spousal election, a percentage of the estate that has to go to the spouse regardless, because the law in general says you can’t entirely disinherit your spouse.
“And here’s another: There’s something called the marital presumption. So if you are married to your same-sex spouse but have moved on without getting a divorce, and have a child using an anonymous donor with your new partner, it’s your old spouse who is the presumptive parent of that child. It’s a mess!”