–by Michael D. Kim
If you and your partner are in a same-sex relationship, getting married in most parts of the U.S. can be tough. Getting divorced, as it turns out, can be even tougher.
Twelve states, the District of Columbia, and a handful of Native American tribes now recognize same-sex marriages. But like all marriages, same-sex marriages may lead to divorce, and until same-sex marriage is uniformly recognized across all U.S. jurisdictions, same-sex divorces can be particularly confusing, complicated, and expensive.
Before same-sex partners can even address matters of venue and personal jurisdiction, and other common issues in dissolution proceedings (e.g., division of property and liabilities, maintenance, child support, and parenting plans), they may find themselves drowning in a hodgepodge of state-specific subject matter jurisdiction requirements. Because jurisdictions that recognize same-sex marriage are still very much in the minority, many same-sex couples understandably travel outside of their resident states to obtain at least some form of legal recognition of their partnership. Subsequently, they may fall victim to conflicting subject matter jurisdiction requirements.
Regardless of where a same-sex couple gets married, if the couple is seeking a same-sex divorce in Washington, residency requirements will play an important role in establishing subject matter jurisdiction. Marriage in Washington has no residency requirements, but divorce in Washington requires at least one spouse of the couple to be a resident.
To establish residency, one spouse generally must live in Washington and intend to make the spouse’s residence his or her home. Actions such as obtaining a Washington State driver license, registering to vote in Washington, opening a bank account in Washington, buying property or maintaining property for personal residential use, and moving to Washington for an employment-related commitment are all examples of how a spouse may seek to demonstrate residency. If one spouse is a member of the armed forces, the spouse may establish residency if he or she is stationed in Washington for at least 90 days after filing and serving the Petition for Dissolution.
In Washington, same-sex couples can generally find themselves involved in one of four situations: (1) married in Washington, divorce in Washington; (2) married in another state or country, divorce in Washington; (3) civil union or domestic partnership in another state or country, dissolution in Washington; or (4) married in Washington, divorce in another state or country that does not recognize same-sex marriages.
Married in WA, Divorce in WA
The simplest scenario is where a same-sex couple married in Washington and seeks a divorce in Washington. Like any divorce in Washington, a same-sex divorce requires establishing that at least one of the spouses is a resident of Washington.
Married in another state or country, Divorce in WA
Washington State will generally recognize a legal marriage in another state. As such, if a same-sex couple legally marries in another state, Washington will recognize their marriage. Like any divorce in Washington, Washington-recognized out-of-state marriages, whether same-sex or different-sex, may be dissolved if at least one of the spouses is a resident of Washington. Whether the state or country in which the couple got married will recognize the dissolution depends on that specific state’s or country’s laws.
Civil union or domestic partnership in another state or country, Status in WA
Generally, Washington State will recognize the status, rights, and responsibilities of out-of-state civil unions, domestic partnerships, and the like to the same extent Washington State would recognize in-state equivalents. In Washington, the most probable equivalent was a registered domestic partnership, but depending on the scope of the out-of-state status, a more appropriate equivalent may now be a same-sex marriage. Dissolving a domestic partnership follows the same procedures as dissolving a marriage and requires at least one partner to be a Washington resident. Whether the state or country in which the couple entered into a civil union or domestic partnership will recognize the dissolution depends on that specific state’s or country’s laws.
Married in WA, Divorce in another state or country that does not recognize same-sex marriages
Because Washington State does not have any residency requirements for marriage, many same-sex couples who live in states that do not recognize same-sex marriage travel to Washington for the sole purpose of getting married. Generally, Washington will not prevent a couple from doing so.
However, if the couple’s home state does not recognize same-sex marriage, depending on that state’s laws, divorce may not be an option in that state. Some states that generally do not recognize same-sex marriage will do so for divorce purposes. Otherwise, if the couple hopes to get a legally recognized divorce, whether it be for purposes ranging from court-ordered spousal maintenance or simply the ability to legally marry another person, the couple may have to resort to filing for divorce in Washington. And because divorce in Washington does have residency requirements, a non-resident couple cannot simply travel to Washington, as they might have done for their marriage, for the sole purpose of getting a divorce. Instead, the couple must establish residency, which may sometimes require more expense than the couple can afford.
Some states, such as Delaware and Minnesota, have taken measures to avoid this hurdle in their respective states by adopting laws that allow their state courts to conduct dissolution proceedings for same-sex marriage cases where marriage occurred in-state, but neither party resides in a state that recognizes same-sex marriage at the time dissolution proceedings begin. Moving forward, perhaps states that have already legalized same-sex marriage, including Washington, should follow suit and amend their statutes to allow similar options.
As more states move towards recognizing same-sex marriage, more state-specific laws will likely complicate same-sex divorce proceedings even further. While residency with an intent to stay in Washington seems to be the most predictable requirement for same-sex divorce in Washington, other states may require more or fewer requirements to file for divorce.
Because couples rarely know whether they may end up living outside of Washington, and because the future of same-sex divorce in other states is fairly unpredictable, same-sex couples should consider taking several anticipatory measures to ensure that their rights, responsibilities, needs, and expectations are honored. Same-sex couples may want to strongly consider drafting wills and prenuptial agreements, arranging second-parent adoptions, and taking other measures to ensure that their intents are fully observed in the event of a divorce.
Michael D. Kim practices family law at Genesis Law Firm, PLLC.