Same gender couples who were lawfully married in Massachusetts and have since moved to other states may find that they can’t get divorced in the state where they reside. Their state of residence may define marriage as consisting of one man and one woman. As a result, this definition of marriage means that the state of residence may not recognize the same gender marriage. If the marriage is not recognized, then the couple can’t get divorced. It is only natural to ask if the couple can return to Massachusetts for one day, appear in court, and get divorced. Unfortunately, this can’t happen.
Massachusetts has a residency requirement before a person or couple can file for divorce. The person who files for divorce must reside in Massachusetts for one year prior to the filing. For many couples this means that they have the right to get married as a same gender couple but not the right to get divorced.
If a same gender couple finds themselves in a state that won’t grant them a divorce, they have four options:
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Stay married.
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One party moves to Massachusetts for one year and then files for divorce.
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Both parties move to Massachusetts. If both parties are bona fide Massachusetts residents they can file a divorce before the one year has passed.
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Contact the ACLU or other organization and ask for assistance to file a court action to declare the law of your state in violation of the United States Constitution and unenforceable. The result of this would be to change the law of your state causing the state to recognize lawful same gender marriages from other states. A number of lawsuits of this nature have been filed around the country and have resulted in changing the law of some states.
An experienced Massachusetts divorce attorney can explain the residency requirements of Massachusetts. If you find that you live in a state that doesn’t recognize same gender marriages and you can’t get divorce you may want to contact the ACLU to find an attorney who can discuss litigation as a method to obtain the right to get divorced.
