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Supreme Court Ruling and Same-Sex Divorce

Friday June 26, 2015

U.S. Supreme Court Legalizes Same-Sex Marriage in All 50 States

In a 5-4 decision, the U.S. Supreme Court issued a ruling today legalizing same-sex marriage nationwide. Associate Justice Anthony Kennedy stated in the majority opinion that "[t]he court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them."[1] The Court's ruling makes the U.S. the 21st country to legalize marriage for gay and lesbian couples. Inherent in today's ruling is the right of same-sex couples to end their marriages through divorce.

Filing for Divorce Based on Today's Ruling

Prior to today's ruling, 37 states plus D.C. that had already legalized same-sex marriage. The experiences of same-sex divorce filers in those states over the last several years acts as a guide for what we can expect to happen in the rest of the country.

Q: Can I use divorce forms even though they contain gender-specific terms?

A: Yes.

One thing that tends to lag behind quite a bit when a state legalizes same-sex marriage are divorce forms. In particular, the approved divorce forms in many states use gender-specific terms like "husband" and "wife" as well as "mother" and "father," although several states have forms that use only gender-neutral terms like "Plaintiff" or "Petitioner" and "Respondent" or "Defendant."

While many same-sex couples find it awkward, if not annoying, to utilize forms containing these terms, we know from experience that courts don't reject forms simply because the party-designating terms don't match with the gender of the same-sex parties. You can simply use the forms as is, or self-customize them to accurately reflect the gender of you and your spouse, but either way there's no need to wait for legal forms to catch up with the law.

Q: Will my Court Clerk's office allow same-sex couples to file for divorce?

A: Yes, but as a practical matter, filers in a few states may encounter difficulties.

The best guide we have at this point to determine whether the Court's ruling will be followed are the statements issued by governors in the 13 states where same-sex marriage just became legal today. Governors in Georgia, Kentucky, Michigan, Missouri, Nebraska, North Dakota, Ohio, South Dakota and Tennessee, have all expressed their intention to comply with the Court's ruling, and while there's been no official word from the governor of Arkansas, we know that a gay couple married in Pulaski County, Arkansas, just an hour after the Court's ruling was announced.[2] In these ten states, same-sex couples should be able to file for divorce immediately regardless of where they were married.

However, in a press release earlier today, Texas Governor Greg Abbott said "[n]o Texan is required by the Supreme Court's decision to act contrary to his or her religious beliefs regarding marriage."[3] What his statement means for Texas same-sex couples in the long-term remains to be seen, but we do know that despite the pre-ruling recommendation of the Texas Attorney General for county clerks hold off on issuing marriage licenses, many already have.[4] Louisiana Governor Bobby Jindal and Mississippi Governor Phil Bryant have indicated that they do not presently intend to recognize the ruling in their states.[5][6] Thus, same-sex couples looking to file for divorce in these three states may find their success to be hit-or-miss at this point.

On a more optimistic note though, Missouri Governor Jay Nixon said today that the ruling"...is a major victory for equality and an important step toward a fairer and more just society for all Americans. No one should be discriminated against because of who they are or who they love."[7]

Q: Does it matter where we got married?

No. Regardless of where you lived then or where you live now, if your marriage was considered legal in the state where it was performed, and no legislation or court action subsequently invalidated it in that state prior to the Supreme Court's June 26, 2015 ruling, your marriage is now valid in all 50 states plus D.C., and you may file for divorce in any state where you meet the residency requirements. More information on residency requirements is available here.

Q: Does it matter if we have minor children together?

A: No. The Supreme Court's legalization of same-sex marriage, which in effect also legalizes same-sex divorce, should apply equally to couples who have minor children together. This means all matters related to the children including child support, child custody and visitation/parenting time should be adjudicated as part of the divorce case, assuming, of course, that the state where the divorce is filed is also the home state of the minor children. Depending on the circumstances, if the minor children reside outside the state where the divorce is filed, the courts may lack jurisdiction to issue orders concerning custody and parenting time, but that's the law regardless of the sexual orientation of the parents.


[1] Obergefell v. Hodges, 576 U.S. (2015)
[2] The Governors Ready to Accept the Same-Sex Marriage Ruling—and Those Who Aren’t by Josh Voorhees
[3] Governor Abbott Statement On Supreme Court Ruling On Same-Sex Marriage
[4] Texas Clerks Issue Gay Marriage Licenses Following SCOTUS Decision, Despite Attorney General’s Request by Polly Mosendz
[5] Bobby Jindal Administration Says Louisiana Won't Recognize Gay Marriage Yet by Julie O'Donoghue
[6] MS Governor Will Appeal If Judge Legalizes Gay Marriage by Scott Simmons
[7] Missouri Leaders React to Supreme Court Ruling Making Same-Sex Marriage Legal by Mike Lear

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