THE BLOG

The Right to Marry Conveys a Right to Divorce

12/07/2010 10:28 am ET | Updated May 25, 2011

Monday's hearing at the 9th Circuit Court of Appeals in San Francisco focused on the constitutionality of Proposition 8, the initiative that prohibited same-sex marriage in California. The legal issues in this appeal are complex, especially as there is a reasonable prospect that the court will throw out the appeal on the grounds that the proponents of the initiative lack standing to appeal the trial court's decision. If the justices rule in favor of the no-standing argument, the trial court's invalidation of Proposition 8 will be upheld, thus striking down the ban on same-sex marriage in California. Depending on how the court rules (and especially if the United States Supreme Court takes the case), there is a chance that the remaining state and federal prohibitions on same-sex marriage may be invalidated nationwide as well. The most comprehensive updates on the case can be found at http://prop8trialtracker.com/

It was a dramatic hearing, with much of the attention focused on the legal technicalities of various appellate doctrines. But eventually the core issues were discussed: the proponents of Prop 8 believe the voters of California had the right to limit marriage to straight couples--and the petitioners argued that the federal constitution protects the rights of gay couples to marry.

It will probably take several years before a final decision is reached -- and the California initiative might itself be repealed by the voters in 2012. But one key aspect of the marriage equality legal debate that has not received sufficient attention is how granting something the right to marry also provides for a right for that person to obtain a judicial divorce, subject to the Family Code rules of the state in which the couple lives at the time of a dissolution.

As is true in every state, one of the primary purposes of the marital law system in California is to protect a dependent spouse from financial distress, especially in the event of a dissolution. In some divorces the issue is one of financial support for the dependent spouse after the dissolution (called alimony, spousal support, or maintenance); in other marriages the Family Law rules are called upon to determine each spouse's respective interest in their property or assets -- or debts -- accumulated during the marriage. Marital law also decides how the expenses during the separation are allocated, and can be turned to to resolve disputes over occupancy of a residence or custody of a child. What is most important is that these rules are based upon broad public policies and legislative rulings, and not dependent on the individual decisions (or lack thereof) of the particular couple getting divorced. Sometimes that is hard for particular spouses to acknowledge, especially when they are asked to share an asset they would rather keep for themselves!

Unfortunately, in those states that do not grant full marriage equality, "divorcing" spouses do not have access to these rights and remedies. Making matters worse, even when the couple has resolved all of their financial and property matters, courts in many states have refused even to grant "status divorces" for same-sex couples who married or state-registered in other states. These rulings leave gay and lesbian couples with only two equally burdensome options: relocating to a marriage-recognition state and initiating a divorce proceeding there, or remaining married until the law changes in their particular state. This is exactly what the courts in Texas, Oklahoma, West Virginia and in other states have said to gay couples seeking a dissolution in the Texas court.

Thus, opening up the door to same-sex marriage will have the beneficial result of opening up the divorce court door as well-- and hopefully not just in California, but throughout the United States. Given how many lesbian and gay couples are cohabiting, registering, and even parenting together, providing access to a legal divorce is one of the best arguments in favor of legalizing same-sex marriage.