Exploring Options for Same-Sex Divorce

Posted by Steven D. Eversole | Jul 27, 2014 | 0 Comments

Same-sex couples who are fortunate enough to live in a state where they can marry, will face significant challenges if they move to another state where marriages are not recognized. Similarly, married same-sex couples who live in a state like Alabama, where their marriage is not legally recognized, will facesignificant hurdles when it is time for divorce. For couples living in states where their marriage is not recognized, divorce can be nearly impossible. In many cases, couples have been forced to move out of state to a state where same-sex is legal, just so they can meet residency requirements to divorce.

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Instead of moving out of state, couples can pursue other options, including a court battle asserting equal rights. Some couples will opt to protest their state laws to protect their rights and to prevent being forced out of state. Our Birminghamdivorce attorneys are dedicated to providing strategic advocacy to same-sex couples living in Alabama. In addition to establishing same-sex union rights within the state, we can help couples explore their rights and options when seeking a divorce.

In some of these cases, divorces have been granted after a judge strikes down a same-sex marriage ban. Last month in Indiana, a judge struck down a same-sex marriage ban, allowing a couple to divorce before the ruling was stayed. A few judges will approve a divorce if they oppose the state's gay marriage ban or if they establish that the law is not an impediment to a divorce proceeding.

In addition to the underlying divorce, same-sex couples will face a host of other legal hurdles, involving custody, property, and maintenance. Even if a divorce is resolved out of state, it doesn't mean that a same sex couple will be afforded protections when they return home. Since the Supreme Court struck down the Defense Against Marriage Act, many states have been forced to confront their bans against same-sex marriage. Another federal law granted same-sex couples federal benefits, though it didn't force states to legalize same-sex marriage.

For same-sex couples living in states like Alabama, options can be limited. Annulments do not settle complex issues like custody or property division. For couples who decide to move out of state to obtain a divorce, residency requirements can be up to a year. In many states, there are no residency requirements for marriage, meaning that couples can fly in, marry, and then go back to their home state. Getting a divorce has proven much more complicated. Now plaintiffs are being forced to seek out forums where laws are less strict on divorce-residency requirements.
While cases continue to push through the courts, same-sex couples from Alabama will likely continue to marry elsewhere and return home to a host of legal issues in the event of divorce. Same-sex couples should consult with an experienced attorney regarding their rights before, during, and after divorce.

Contact Birmingham divorce and family law attorney Steven Eversole at (866) 831-5292.

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama

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