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Domestic PartnershipSame Sex Divorce- Available in New York, Questionable Elsewhere

May 3, 2010

While more states are allowing same sex marriage, obtaining a same sex divorce may be problematic. Though the District of Columbia and five states have legalized same-sex marriage, CNN is reporting that some states, which do not recognize same sex marriage explicitly ban same divorce or will not even recognize the validity of the marriage.

Though New York will not allow same sex marriage, it will recognize, as valid, marriages performed in a state which allows same sex marriage. In those cases where New York recognizes the validity of same sex marriage, New York courts will permit same sex divorce. In fact, I have been fortunate enough to have represented successful same sex litigants seeking a divorce.

While all heterosexual marriages and divorces are recognized when a couple moves from one state to another, some states do not follow New York’s example, and will not recognize as valid, same sex marriages even if the marriage was lawfully entered into another jurisdiction.

In the states not performing sex marriage, the issue of same sex divorce creates a conflict- if the state doesn’t recognize a marriage, then how could it dissolve it? If a state that outlaws gay marriage but grants a same-sex divorce, does that imply gay marriage is recognized? On the other hand, the denial of the same sex divorce locks the parties in a same sex marriage which the state opposes.

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