It has been several weeks now since the historic ruling against DOMA (the Defense of Marriage Act) was handed down by the Supreme Court and so far the country has not spiraled into an apocalypse. However, many real effects of the DOMA ruling remain unclear, as experts are still attempting to sort out just how the court’s judgment will affect federal — and possibly even state — laws. One of the more unexpected possible outcomes may be an end to the catch-22 that many married same-sex couples find themselves in when seeking a divorce.
Though research on the topic is still new, recent studies seem to indicate that divorce rates among same-sex couples are roughly similar to that of opposite sex couples. A 2011 Williams Institute study, for example, found a rate slightly below average, a gap some believe will disappear once more same-sex couples start marrying. With over a third of Americans now living in a state with marriage equality, this means that same sex divorce is already a potential issue for many couples, most of whom are unaware of the legal trap they could wind up in.
For many couples, the nightmare began when they moved to a state that prohibits marriage equality. In most cases, such laws prevent the state from recognizing that the couple is even married and thus they technically cannot be divorced. Since most states require residency for couples to seek divorce, unhappy same sex couples become effectively locked into a relationship limbo: they can’t divorce in the state of their marriage or their residency, and they can’t remarry without violating bigamy laws in states that do recognize their marriage.
What’s more, same-sex couples that can divorce often face more obstacles than opposite sex couples. Some states only consider property obtained by the couple after marriage in divorce proceedings, leaving those who were together for years or even decades before marriage was even possible out in the cold. For those with children, one spouse must usually adopt them before courts will consider splitting custody instead of just granting it to the biological parent. Even then, the legitimacy of the divorce could still possibly be challenged in the future, leaving a gray cloud over the heads of ex-spouses.
In some cases, marriage equality opponents have started politicizing divorce procedures as well. Couples in some states have had divorces challenged by anti-LGBT groups or even the state attorney general themselves. Given the dirty laundry and heated arguments that often arise during a divorce, such public attention seems for many to have come at the worst time.
Still, legal experts are optimistic that the DOMA decision will at least clear up some inequities when it comes to estates, tax deductions, alimony payments and other issues on the federal level, giving distressed couples seeking a divorce some much needed relief.
Meanwhile, those that are considering marriage currently are advised to think carefully before they take their vows, as the phrase “till death do us part” might become all too literal.