The Legal Implications For Same-Sex Couples Living in Non-Recognition States

The New York Times recently published an editorial about Minneapolis mayor R.T. Rybak, who is recruiting same-sex couples living in states that don’t recognize same-sex marriage to marry in his city. His admitted goal is to bring in millions of dollars to Minneapolis through the hospitality industry and in taxes. And, now that the Supreme Court has overturned the Defense of Marriage Act (DOMA), he is quick to point out that same-sex marriages performed in Minneapolis will be recognized under federal law, even in non-recognizing states.

While, as the Times wrote, Mayor Rybak’s actions make for a “fun” story and a “refreshing” reflection on how far marriage equality has come, same-sex spouses who marry in a state that recognizes same-sex marriage and then move to a non-recognizing state should be aware of possible problems regarding a potential divorce. While progress has been made on the same-sex marriage front, the situation is more complicated for same-sex divorces because these marriages are not “portable.” Couples who marry and divorce in a recognizing state should have no problem. However, couples who marry in a recognizing state and then move to a non-recognizing state may find themselves in a no-man’s land of sorts: They cannot divorce in the state where they married, because most states (including New York) have a residency requirement that must be met before the state will adjudicate a divorce, and they cannot divorce in the state in which they reside because while the federal government has to recognize legally entered same-sex marriages, the states do not, and a couple cannot divorce in a state that will not recognize its marriage.

Some non-recognizing states may grant divorces, or may grant civil union dissolutions rather than divorces. The latter could cause problems in other states in which the same-sex couple would still be considered married; a civil union dissolution may not meet the requirements for divorce. However, there is still significant uncertainty about how same-sex divorces would be handled even in these states.

Additionally, even while the couple is married, problems arise in non-recognizing states. The couple would have to review any legal document in which they refer to each other as spouses (such as wills and powers of attorney) and change that language so that the state will enforce it.

While, as the Times wrote, same-sex couples can certainly go to one of the 13 states that has legalized same-sex marriage to get married, they – and all legally married same-sex couples – should consult a matrimonial attorney and a trusts and estates attorney before moving to a non-recognizing state. These attorneys will be able to advise same-sex couples of the potential hazards of living, divorcing, and even dying in a non-recognition state.

-Ellie Ackerman 570 Lexington Avenue Suite 1600 New York, NY 10022 eackerman@vaccalaw.com