Tuesday, October 16, 2012

Same Sex Divorce: Jurisdiction

Agree or disagree, like it or not, same-sex marriage is a fact of life in Iowa these days. And with it comes the wrinkles with any marriage, including the possibility of divorce or dissolution of marriage. However, for this area of the law, there is another problem: Jurisdiction.

Jurisdiction is the legal concept that tells you where to file a case. So, if you marry in Iowa, live in Iowa, and still live in Iowa when you divorce, of course you file your divorce here. If you marry in Iowa, but relocate to another state for a year prior to your divorce, the other state would govern. 

But not all states recognize same-sex marriage. What happens if you marry in Iowa, relocate to a state where same-sex marriage is not recognized, and decide to get divorced? That state may not help you; according to their laws, you were not validly married to start with. Some states have denied divorce to such couples, leaving them in a marriage gray-area. Denied divorce, some same-sex couples 'wed-locked',By Elizabeth Landau, CNN. http://www.cnn.com/2012/06/07/living/same-sex-divorce-marriage/index.html

At least one jurisdiction is dealing with this problem. In Washington, D.C., a same-sex couple who gets married in the District can return there to complete a divorce, if the state that would have jurisdiction would not allow the divorce. Here is the text of the bill: http://dcclims1.dccouncil.us/images/00001/20111019165655.pdf

Iowa does not currently have a parallel statute. If a couple wants or needs a divorce in Iowa, jurisdiction would have to be established, which means at least one party needs to reside in Iowa. But perhaps this sort of statute would un-muddy the waters, at least somewhat, surrounding same-sex marriage.