Dissolution of Same-Sex Marriages and Civil Unions From Other States – Can I? Why Should I?

Dissolution of Same-Sex Marriages and Civil Unions From Other States – Can I? Why Should I?

| Apr 29, 2013 | in Civil Unions, Dissolution, Legislation |

legal gavel on top of divorce papers

Colorado’s new Civil Union law goes into effect in less than forty-eight hours and there is an almost palpable air of excitement.  Colorado’s LGBT community will finally have at least some legal recognition as well as legal rights, responsibilities and protections that have been denied them in the past, including a method for dissolution.  It isn’t marriage equality, but it is a strong step in the right direction.

One noteworthy aspect of the new Civil Unions law is the dissolution procedures. The new Colorado law provides that the divorce/dissolution procedures that apply to marriages will now equally apply to civil unions.  This is exceedingly relevant to many same-sex couples residing in Colorado who have previously entered into a marriage, civil union or similar legal relationship in other states or countries, such as New York, Massachusetts or Canada.  Just as with heterosexual couples, some of those relationships have not worked out.  However, unlike heterosexual couples, many have been unable to obtain a formal divorce or dissolution because Colorado has not recognized their legal relationship.

In many states and countries that offer same-sex marriage or civil unions, meeting residency requirements in order to obtain a marriage or civil union is easy, often 24 to 48 hours.  By contrast, in order to obtain a divorce or dissolution, at least one of the parties has to meet the more strenuous dissolution residency requirements, often six months to one year. Traditionally, this prevented spouses from forum-shopping for favorable divorce laws but it has created chaos for same-sex couples.  For example, in New York, at least one of the parties to a marriage obtained in New York must be a resident of the state for one year prior to the filing of a divorce action.  See N.Y. Dom. Rel. Law §§ 230, 231.  If both parties already live in a different state, obviously the idea of picking up one’s life, job, possibly children and moving to New York for a year is simply not realistic.  However, if neither party is residing in a state that recognizes their legal relationship, such as Colorado pre-May 1, 2013, then that state also will not generally grant them a divorce or dissolution.  There is no legal process available to them to end their relationship, and no set procedure for dividing their property and/or their debt, nor for deciding issues related to any children they have, including visitation schedules and/or child support. These couples are literally left in perpetual limbo, oftentimes facing complications and obstacles when they subsequently try to purchase a new home or start a new business or maybe even enter into a new relationship because in certain states, they are considered married to someone else even though they cannot obtain a divorce.

Colorado’s Civil Union law provides some relief to Colorado residents who have found themselves in this limbo.  The new law provides that any out-of-state marriage, civil union or substantially similar legal relationship is “deemed” a Colorado civil union.  Thus, same-sex couples who have already obtained a marriage or civil union in other jurisdictions will have the same state rights and responsibilities that married couples enjoy.  This is welcome news for many couples who already obtained legal status elsewhere and will not have to go through another legal procedure in their home state in order to enjoy legal recognition. However, it is also welcome news for those couples who are no longer together but have been unable, for the reasons discussed above, to obtain a formal dissolution.  They can now use Colorado’s dissolution procedures to formally and legally terminate their relationship.

Of course, this new legal recognition of existing legal relationships from other jurisdictions is a double-edged sword. Some couples who were previously married or otherwise legally joined elsewhere have since informally ended their relationship and managed to resolve or work out any financial issues, decisions pertaining to children, etc.  Thus, the fact that their previous marriage or civil union will now be deemed a civil union under Colorado law is not altogether happy news.  However, dissolving that relationship through the dissolution procedures is generally being viewed as a necessary step so that all parties can move forward free of any future liabilities or legal entanglements, and be able to enter into a civil union someday with a new partner.

Additionally, the Colorado legislature was likely aware of the nationwide problems arising for other same-sex couples seeking a dissolution or divorce that do not reside in the state in which they were joined.  The Civil Unions Act specifically includes a provision that allows Colorado courts to retain jurisdiction of proceedings related to a civil union entered into here, even if one or both parties cease to reside in this State.  Under the law, if parties to a civil union entered into in Colorado move to or reside in a state that does not recognize their relationship and/or will not grant a dissolution, they can file for dissolution in Colorado even though neither party resides here.  In 2012, California enacted similar legislation providing that if a couple got married in California during the window in 2008 when same-sex marriage was recognized but lives in a state that will not grant them a divorce, 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.”

As of May 1, 2013, Colorado same-sex couples, and former couples, will have a mechanism to dissolve their legal relationship even if it was formed in another state.  This is a tool that will definitely be beneficial to some Colorado residents.

For more information and to see a map of same-sex dissolution laws by state take a look at this article.

For an in depth look at the same-sex couple divorce dilemma check out this great article in the New York Magazine.