The process of divorce is different for someone who has obtained a same-sex marriage or civil union in a state that permits them. Pennsylvania does not recognize same-sex marriages or civil unions, so if you and your spouse are of the same gender, married or civilly joined in one or more states that allow it, and are seeking a divorce, you may wonder if this is possible under Pennsylvania law?
The answer, as the current law stands, is no. In Pennsylvania marriage is defined in 23 Pa.C.S. § 1102 as “a civil contract by which one man and one woman take each other for husband and wife.” This definition was introduced by the 1996 state constitutional amendment, Act 124. In 2010, a Berks County court refused to grant a divorce to a Pennsylvania same-sex couple married in Massachusetts on the grounds that it would have to recognize their marriage first, which would violate this amendment. Therefore, same-sex spouses who are residents of Pennsylvania but married in another state can’t currently seek a divorce in the Pennsylvania court system.
Since the states that do allow marriages or civil unions within their boundaries also often have a residency requirement for divorce, and since same-sex spouses can’t seek divorce in Pennsylvania, this leaves many gay and lesbian couples legally bound by those states to a marriage they no longer want any part of. Additionally, with the federal Defense of Marriage Act (DOMA) still in place and no promises of it being fully overturned by the Supreme Court in late June, these same-sex spouses are also left with no federal resolution. This is the definition of being wedlocked.
In March of this year, the Supreme Court heard the arguments of two key cases that may change this on a federal level, a state level, or both. The first case, Hollingsworth v. Perry, addresses the issue of Proposition 8 in California, while the second case, United States v. Windsor could address the constitutionality of DOMA. When these cases are decided in late June of this year, there may be a resulting solution for married or civilly joined gay and lesbian couples to obtain a divorce.
Until there does exist either a federal or state-level divorce solution for resident Pennsylvania same-sex couples, they can either choose to remain wedlocked in the state or states they are married in or meet the residency requirements for divorce – which can be anywhere from 90 days to 2 years. The legal landscape regarding the issue of LGBT divorce is constantly changing, and some states allowing the marriages or unions may offer an out-of-state solution for your divorce.
If you are facing the complexities of needing a same-sex divorce in a state you don’t’ live in, you can sift through the statutes, precedents, and policies of each equal marriage rights state on your own to determine if there is a divorce solution for your wedlocked Pennsylvania same-sex marriage – but you don’t have to. A knowledgeable divorce lawyer can help seek such a solution for you.