As I wrote last week, New York now allows same-sex couples to marry. The first marriages took place on Sunday, July 24, 2011. (While Gov. Cuomo signed the bill legalizing same-sex marriage a month ago, it had a 30-day waiting period before becoming effective.) It is interesting to note that, unlike other states allowing same-sex marriage, New York has no residency requirement for marriage. So, this could open the door to same-sex couples from states which do not allow same-sex marriage to take advantage of New York’s law with a quick visit to the state.
However, while there is no residency requirement for marriage in New York, there is a one-year residency requirement for divorce. Thus, while an out of state couple could get married in New York, they would not be able to get divorced there. In fact, they may not be able to get divorced at all.
Divorce typically requires two elements under state law. First, at least one member of the couple must meet the residency requirement, as in New York. Second, there must be a marriage, which is recognized under the laws of the state, to be dissolved.
So, if a couple lives in a state that does not recognize same-sex marriage, they could travel to New York and become married. However, if they later decided to divorce, they would not be able to do so without moving to a state that did recognize their marriage.
While we talk about the right to same-sex marriage, it is also the right to same-sex divorce. Same-sex couples contemplating going to New York for marriage should be advised that divorce may not be as simple as hopping on a flight. Perhaps the couple could agree that, upon certification of problems by a mediator, the more mobile one of them will agree to change residency to a state that allows same-sex marriage and divorce. The mediator could even determine which one of the couple is the more mobile.
Marriage can be a wonderful institution. However, not every marriage is successful. Same-sex couples who choose to marry may have unique difficulties in getting divorced.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, CA 92123