NY Same Sex Marriage – A Divorce Booby Trap for Out-of-State Residents

I get calls on a daily basis from people across the United States who all made the same mistake.  They came from their home states to New York to marry their same sex partner, but now when their marriage is not working out they’re trapped.

Unfortunately, New York’s legislation approving same sex marriage did not come with any fine print.  Nothing was disclosed about what would happen to those individuals who wanted to get divorced in states that do not recognize same sex marriage and therefore won’t entertain granting them a divorce.

The scenario is all too common.  A same sex couple comes to New York to get married.  Their marriage fails for one reason or another.  They can’t get divorced in New York because they don’t meet the residency requirements to do so here and they can’t get divorced where they’re living now.

This sets the stage for one of two things to happen:

1. The couple perjure themselves (i.e., lie) to the New York Supreme Court and claim that they have resided in New York State long enough to meet the residency requirements (which is illegal and not a good idea), or
2. They are forced to move to New York and live here for at least a year (sometimes two) to meet the residency requirements

This is an extremely common problem leading to holy imprisonment not holy matrimony.  Couples are bound to the rights and responsibilities that come along with marriage.  For example, if one party acquired assets, property during the marriage, the other is entitled to equitable distribution of those assets upon a divorce.  If one cannot get divorced, then obviously this causes a serious problem.

The same is true for debt incurred during marriage.  This too would be seen as marital debt and would be the responsibility of both parties to settle up with the creditor or else either one could be a target for a collections action.

One temporary “band aid” solution to stop the bleeding is for the parties to enter into a separation agreement where the rights and responsibilities of either party during the separation are spelled out.  If both parties agree to sign a separation agreement, then as long as the agreement is properly drafted if either acquires assets or incurs debt it will be their separate asset or debt.  Again, this is not a dissolution of the marriage but it does serve as a creative way to work around the current system.

The bottom line is that we must press for a solution in the political and legal arenas that addresses the booby trap nature of New York same sex marriage for out of state residents who reside in states that won’t divorce them.

The New York court could potentially use it’s power of equity to infer jurisdiction to hear the divorce and render a judgment despite the parties residing out of state.

Time will tell how this will play out.  Possibly more states will jump aboard and recognize same sex marriage?  Possibly a federal law will be passed that deals with the interstate issue?

I am looking forward to pioneering this effort to find a way out for the same sex couples who have found themselves trapped in their marriages with no legal way out.