Legal Lines Blurred In Cases Of Marriage Equality For Same Sex Couples


Area of Law: 

Same Sex Divorce Issues Show Why Marriage Equality is THE Civil Rights Cause of the 21st Century

Marriage equality is a pure civil rights issue, without question. While equal treatment under the law is guaranteed to all by the 14th Amendment, same sex couples are often finding the 14th Amendment doesn't always apply to them in practice. Some states allow same sex marriage while others do not. The Constitution requires states to recognize the laws of other states, but this doesn't always happen when it comes to marriage equality. These issues are creating new areas of family law that are still being explored.


Same Sex Divorce Inequality

For example, same sex marriages are just as likely to end in divorce as heterosexual marriages. But what do same sex couples do when they live in a state that doesn't allow gay marriage? If that state doesn't allow gay marriage, it's certainly not legally equipped to deal with same sex divorce. How can that state undo something it doesn't allow in the first place? Couples who legally marry in one place, then move to a place that doesn't allow it can't get a divorce there.


Because of the residency requirement most states have for divorce, they can't even get one in the state where the marriage was granted. The couple is left in legal limbo and personal misery unless they make a trip to California,Washington, D.C., Minnesota, Delaware OR Vermont (if not children), where there is no residency requirement for divorce. However, even in those places, a same sex couple can divorce only if they were married in the jurisdiction, so this is not a pure remedy for many.  


Federal Versus State Benefits for Same Sex Couples

Of course, it isn't just divorce that poses a problem for same sex couples. Living in a state that doesn't allow gay marriage can complicate a lot of areas of their lives. They can submit joint federal tax returns if they were legally married in another state. However, if their state of residence doesn't recognize their marriage, their state taxes have to be filed separately. One member of the couple may be able to be on his or her partner's health insurance if it's federally obtained or if their job offers it. However, they can't get joint Medicaid or food stamp benefits from their state, and if one partner works for the state, the other one won't be allowed to be on his or her spouse's health insurance.


Constitutionally, Nationwide Same Sex Marriage appears Inevitable

The whole issue is becoming more than a matter for the states to decide for themselves. The inequality of the way same sex couples are treated under the law in different places is becoming a constitutional issue that will eventually need to be addressed by federal law. If, over the next three to five years, the U.S. supreme court issues a wide-sweeping marriage equality ruling, then all states would be required to accept gay marriage. It may not be an easy transition, just like desegregation wasn't easy in the 1960's. However, it happened, and so probably will same sex marriage.


Public Acceptance Means a Better Chance for Real Marriage Equality

More people approve of same sex marriage now than ever. Even the people of Georgia, who disapproved of same sex marriage by a 75 percent majority 10 years ago now approve of it with a 48 percent plurality now. That makes the process of getting laws changed a little easier for activists. It helps when the general population approves. That's why it should have come as no surprise when Hawaii recently passed same sex marriage into law that the lawmakers who voted against it were each mailed a lump of coal....the traditional gift from Santa for children who have been naughty.


What to Do if You Need Legal Assistance With Your Same Sex Marriage

If you live in a state like Georgia, which doesn't allow same sex marriage, but were legally married in another state, you have recourse to legal help for these tricky Constitutional issues, especially divorce. Call a divorce lawyer. They can offer advice and point you in the direction of your best options under current federal and state laws. Eventually, all marriage will be equal. Until then, you need to be able to rely on legal counsel you can trust.