Same-Sex Couples’ Legal Rights In Pennsylvania
As of today, seventeen states plus the District of Columbia recognize gay marriage; eight of these states legalized gay marriage in 2013. Several states have also expanded the legal rights available to same-sex couples through domestic partnerships and civil unions. This trend has gained momentum since the U.S. Supreme Court decision in June, 2013 to allow eligibility for federal benefits to same-sex couples nationwide. Pennsylvania, however, remains one of the more than thirty states that ban same-sex marriage. As a result, many same-sex couples residing within Pennsylvania travel outside of the Commonwealth to obtain legal recognition of their relationship.
What if the Relationship Doesn’t Work Out?
So what if a same-sex couple living in Pennsylvania wants a divorce? Things get more complicated. Certain states that do not recognize same-sex marriage, Pennsylvania included, also do not recognize same-sex divorce. In order to obtain an out-of-state divorce, the couple may have to establish residency in that state (which can take anywhere from 90 days to years). This creates a predicament commonly termed “wed-locked”.
Why You Need a Formal Divorce
While the idea of foregoing a formal divorce and opting for an informal separation of assets may seem tempting to a “wed-locked” couple, there are many reasons why it may be necessary to obtain a formal divorce. For example, if one spouse later gives birth to a child in the state of the marriage, the other spouse is legally presumed to be that child’s parent. It also means that neither spouse may marry or enter into a civil union with a new partner in that state, or else they could be subject to charges of bigamy. Finally, a formal divorce also brings an element of emotional closure that separated couples may need to move on.
Changing Tides
Luckily, access to divorce for non-resident same-sex couples may be expanding. In response to the problem of “wed-lock”, a number of states have passed laws allowing courts to take jurisdiction over dissolution proceedings for non-resident same-sex couples who have entered into a marriage, civil union, or domestic partnership in that state. Furthermore, several states (Arizona, New Mexico, and Wyoming) that do not allow same-sex marriage do allow divorce of resident same-sex couples. Ultimately, more states that refuse to recognize same-sex marriage (like Pennsylvania) may follow suit, confining recognition of same-sex marriage to the specific purposes of ending the marriage.
What To Do Now?
Unless and until Pennsylvania law recognizes divorce between same-sex partners, couples considering marriage, domestic partnership, or civil union in other states should consult with a Pennsylvania attorney to discuss the use of a prenuptial (or if already married, postnuptial) agreement to address some of the legal implications of divorce between same-sex partners. Of course, if the couple is already married and seeking divorce, they would be well-advised to speak with Pennsylvania counsel to ensure not only equitable division of assets but also protection from the unforeseen consequences of being “wed-locked”.
Lehigh Valley Family Law is a publication of the KingSpry Family Law Practice Group. It is meant to be informational and does not constitute legal advice. Our editor-in-chief is Donald F. Spry, II.
