One of the nastiest dimensions of the battle over same-sex marriage has been the lack of access to divorce courts for same-sex married couples that reside in non-recognition states. While you might think that anti-gay judges would be thrilled to help these gay couples break up, in fact that is not true. Judges in Texas, Oklahoma, Rhode Island and other states have refused to grant divorces to lesbian or gay couples who went elsewhere to get married or have relocated from the state in which they got married, on the grounds that granting a divorce would constitute a form of official recognition of their marriage. Mind you, most of these couples are not asking a judge to grant them any property or alimony based upon their marriage, since they've already settled those issues -- they just want to get an order of dissolution. And the couples have good reasons for wanting the court order. Even if they have resolved their financial affairs, they need to get a divorce so they can be free of future liabilities, and so they will be able to marry or legally partner their new romantic interest.
The legal origin of these problems stems from what is referred to as the "domicile" rule, which means couples ordinarily can only get divorced in the state in which they reside at the time of their break-up, regardless of where they lived when they got married. The purpose of this rule, which goes back more than a century, is to prevent nasty husbands (or wives) from evading the divorce rules of the state they live in, by simply hopping across the state line to get a divorce in another state. For example, if a husband in New York didn't like the property rules imposed on him by the New York court, it would be unfair to his wife if he could simply drive a few miles away to a more lenient state and file for divorce there.
While these rules may make sense for heterosexual couples who can always get a divorce in whatever state they live in, they wreak havoc for couples who live in states that won't grant them a divorce under any conditions -- even if they've reached a property settlement with their spouse. This is a vivid example of where the denial of the right to marry ends up as a denial of the right to get a divorce.
Fortunately, the California legislature has just passed a bill (which was signed into law on October 9th by Governor Jerry Brown) that resolves this problem -- at least for those who came to California and got married there in 2008. It will also help those who may in the future get married in California, if and when Proposition 8 (which bans same-sex marriages) is repealed or ruled to be unconstitutional. The bill is titled SB (Senate Bill) 651, and the full text can be found here.
The new law will go into effect in January 2012. It provides that if a couple got married in California but lives in a state that won't grant them a divorce (which is presumed if the state doesn't recognize their marriage), the California court will have jurisdiction to grant them a dissolution. The divorce case will be filed in the county where the couple got married, and the dissolution is supposed to be adjudicated "in accordance with California law."
There is a lot that remains unresolved in this new legislation, especially what it means to adjudicate a divorce in accordance with California law if the spouses are not residents. But for those who have been able to reach their own private settlement agreement, this will enable them at least to obtain a formal dissolution. And, while there is also some uncertainty on the details, chances are the dissolution will be honored in other states, even non-recognition states. This will allow the ex-spouses to enter into contracts as a formerly married person, and to be treated once again as an unmarried person.
It's a long ways from full marriage recognition in every state, but at least the couples that married in California will now be free to get divorced, wherever they live!