Can you be divorced without being married?

“First comes love;
Then comes marriage;
Then come Little Munchkins in the baby carriage!”

Has anyone ever noticed that divorce was not mentioned in that nursery rhyme? Perhaps it wasn’t included, because divorce wasn’t as common when the song was written. Perhaps it wasn’t included, because we would all rather think optimistically about marriage and family. Perhaps I just spend a lot of time working on divorce cases, so I think about these things in my “spare” time.

Historically, you have needed to be married in order to actually GET divorced. It’s not totally true now. I can almost see you shaking your head, re-reading that last sentence, thinking I’m crazy, and wondering, “How can that be?”

Same sex couples have had the freedom of marital rights and privileges in the Commonwealth of Massachusetts for over ten years, Goodridge v. Department of Public Health, 440 Mass. 309 (2003).   When Massachusetts started to conduct same sex weddings, many couples planned destination weddings within the Commonwealth. Similarly, same sex couples have flocked to the many other states that now conduct such unions.

Thirty seven states currently allow same sex marriages. If you get married in a state that allows marriage, you can get divorced in that state or in any other state that allows for same sex marriage. Regardless of whether the spouses are traditional or same sex, the same laws and procedures are applied in Massachusetts, under MGL c. 207, and similarly in the other states.

It gets a bit more confusing and complicated if the state in which you reside does not currently allow same sex marriage. Often, a conflict of laws occurs if a divorce is sought. For a state that does not recognize same sex marriage, it is, theoretically, impossible to allow the parties to divorce. Some states are currently allowing parties to file for a divorce, even if they would not otherwise recognize the marriage; however, when the state will not allow the parties to divorce in the state, the couple may either seek a divorce in the jurisdiction in which they were married or challenge the constitutionality of the same sex marriage in that jurisdiction.

The United States Supreme Court is in the process of hearing and deciding several same sex marriage cases. A favorable outcome will bring the freedom to marry nationwide, and, by default, the same would be true for potential divorces. The Supreme Court has already held that the Defense of Marriage Act of 1996 (“DOMA”), Section 3 was unconstitutional, and that all loving and committed couples, heterosexual or homosexual, who marry deserve equal legal respect and treatment, Windsor v. United States, 133 S.Ct. 2675 (2013). Accordingly, it would be surprising if they did not continue to expand on the rights of same sex couples in future rulings.

Regardless of whether you believe in same sex marriage, things are changing and they are happening quickly. Given the current composition of the Supreme Court and the trend of the country, the process should be interesting to watch. As things continue to change or if you have questions, please feel free to contact my office and refer to either www.glad.org or www.supremecourt.gov/opinions

As always, please feel free to contact me for additional information. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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