Other States’ Gay Divorce Can Affect Us
By Randall M. Kessler
States legalizing same-sex marriage are remaking laws governing the union of two people. But as a family law attorney with 20 years of experience, I’m seeing a tangled web of legal problems dealing with a much more difficult issue: same-sex divorce.
Same-sex marriage is now authorized in a handful of states. But what happens in those states when those couples break up? Why should it matter in the states such as Georgia that have not recognized same-sex marriage?
Because we have a system of justice that allows each of our United States to recognize and enforce court orders of sister states, and this, of course, includes court orders of divorce.
Opponents of same-sex marriage sought a constitutional amendment to disallow same-sex marriage throughout the country since once it happens in one state, other states would surely follow. Well, now Iowa’s Supreme Court has allowed it, Vermont’s Legislature has approved it and other states are following suit.
A same-sex marriage that is legal in one state can be dissolved by divorce in that state. But when a gay couple divorces and then moves to a state where same-sex marriage is not legal, new challenges arise.
For instance, if one party was awarded a house that happens to be in Georgia would that divorce order be enforced in Georgia? If so, wouldn’t Georgia then be recognizing, at least by implication, same-sex marriage?
If not, aren’t we sending a message to Vermont or whichever state granted the divorce that we would not enforce their orders? And could this mean that Vermont might retaliate and not enforce orders of our state?
What happens if a gay couple marries, adopts a child and then divorces, all in a state that recognizes same-sex marriage, but then they move to Georgia? If the custodial parent seeks to enforce a child support award against the other parent, what does the court do?
If it enforces it, then hasn’t the court, and thus the state, recognized same-sex marriage, by enforcing the terms of the same-sex divorce? If it does not enforce the order, aren’t we then harming the most innocent victims, the children who need the support?
The same is true with child custody and visitation orders. If Georgia or any other state refuses to enforce a same-sex divorce then parents will have no way to ensure they can visit with the child if the custodial parent moves to Georgia.
There are many other such examples. If a gay divorcee applies for a job or credit in Georgia, do they put on the application that they are divorced, separated or single? Can the alimony or child support they receive from their same-sex divorce be counted as income when applying for a loan or a mortgage?
I am staying out of the political debate, but the idea of allowing citizens to utilize government for things like divorce helps give answers to those who would otherwise have to live with uncertainty.
Gay or not, people who love each other, invest together and have children together can benefit from the ability to have the court resolve their differences.
The purpose of the court system with respect to divorce is to resolve disputes and to guide parties in their future dealings when they cannot otherwise agree. Why should this logic only apply to heterosexuals?
As a family law attorney, I anticipate these issues will be before Georgia courts and perhaps the Georgia Legislature very soon. I look forward to seeing how we choose to resolve them.
Randall M. Kessler is with KSS Family Law and editor of the Family Law Review for the Georgia Bar.