‘Til Death Do Us Part: Residency Requirements and the Gay Divorce Dilemma

Background.  Since Massachusetts legally recognized the right of same-sex couples to marry in 2004, thousands and thousands of couples from around Massachusetts and around the Country have tied the knot here in the Commonwealth.  As we know, the status of marriage provides countless benefits to gay and straight couples alike, including inheritance, property ownership, presumptions of parenthood, etc.  But one of the most important (and often overlooked) benefits of marriage is actually divorce!  Divorce provides both parties in a relationship the benefits of an orderly division of property, assets, and debts, and promotes the fair and equitable treatment of both spouses.

While many same-sex couples have remained here in Massachusetts, some married gay couples have either returned to their home in another state, or moved out-of-state to pursue employment or other opportunities.  In the process of packing up their lives and families in order to move out of state, these couples have left one very important thing behind: their marriage!

I am contacted increasingly often by couples from states like Florida who were married in Massachusetts and who now want to obtain a same-sex divorce.  In many cases, both spouses are in complete agreement and ready to cooperate in order to obtain a divorce.  Their question to me:  Can we obtain a divorce in Massachusetts? The answer:  No.  Follow-up question:  Well, then can we get divorced in Florida? The answer:  No.

Recent Massachusetts Case Law Concerning the “Residency Requirement”.  This dilemma recently played itself out in the case of Francesca Cerutti-O’Brien v. Donna-Marie Cerutti-O’Brien.  Francesca and Donna-Marie were married in Truro, Massachusetts,  in November, 2006.  At the time of their marriage, Francesca was a shop-owner and resident of Massachusetts, and was making routine trips to be with her partner, Donna-Marie, in Florida.  Less than one month after the marriage, the couple bought a home together in Florida, with plans to open up a shop in Florida and spend summers in Massachusetts together.  Despite marital counseling, the marriage quickly soured and, according to court papers, suffered an irretrievable breakdown in Florida on June 19, 2007.  Francesca filed for divorce here in Massachusetts on June 27, 2007.

On the eve of their divorce trial, Donna-Marie moved to dismiss Francesca’s divorce complaint on the basis that the Massachusetts Courts could not grant a divorce to the couple because neither of them was domiciled here in Massachusetts.  The Court agreed and dismissed the divorce.  Francesca appealed.

On review, the Appeals Court affirmed the Probate and Family Court’s dismissal of Francesca’s complaint for divorce.  Under Massachusetts law, the Probate and Family Court can only hear divorce cases in which the grounds for divorce occurred in another state if:  (1) the spouses once lived in Mass, AND one of the spouses resides in Mass at the time the complaint is filed, OR (2) at least one of the spouses has resided in Massachusetts for at least one year prior to filing.  After all, if the grounds for divorce occurred in Florida, and the parties reside in Florida, then Florida is the most appropriate venue for the divorce, right?  Not necessarily!

The Dilemma for Married Same-Sex Couples.  The dilemma for many married same-sex couples is that their state of domicile will not grant them a divorce because it will not recognize their marriage.  After all, one of the prerequisites for obtaining a divorce is proving that you are married in the first place.  In a majority of states across the country, same-sex couples will not be able to establish the existence of a valid marriage.  And as many couples have discovered, the state that granted them a marriage now lacks the power  to grant them a divorce on account of the residency requirement.

Frustrated yet?  Consider this:  every time you re-enter Massachusetts, or any of the growing number of states or nations that recognize a Massachusetts gay marriage, you may be considered married in that state for purposes of inheritance, property ownership, medical decision-making, taxes, employment, military eligibility, etc.

Until each and every state recognizes gay marriage, or will at least agrees to grant a divorce to married same-sex couples within its borders, this dilemma represents another undue and heavy burden on LGBT couples and families.  I propose that the Massachusetts legislature modify Massachusetts General Laws Chapter 208 Section 4 and 5 to allow same-sex couples who were married here in Massachusetts, and find themselves barred from obtaining a divorce in their current state of residency, to obtain a divorce here in Massachusetts.

Barring a change in the state’s current residency requirement, I strongly recommend that same-sex couples who are thinking of becoming married here in Massachusetts sit down with an attorney who focuses in LGBT legal issues, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth.

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2 Responses to ‘Til Death Do Us Part: Residency Requirements and the Gay Divorce Dilemma

  1. Tiffany says:

    I have question… I married in MA but nevered lived there and I went back to home state Texas with my spouse. Then we want to divorce could one of us go to another state that reconizes gay marriage and divorce there rather then in MA or does it have to be in MA since neither of us lived in MA where we were maried?

    • Tiffany, thank you for your question. If you and your spouse intend to divorce, you will have to find a state that recognizes your marriage and then one of you will likely need to establish residency there for the required period of time. Good luck!

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