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How do courts handle same-sex divorce when marriage is banned?

Same-sex marriage has for decades been a long-standing issue across the nation, pitting religious beliefs against civil rights. But same-sex marriage has now gone far beyond the fight to give people the right to marry who they want. As a number of recent cases show, including Windsor v. United States, there are other legal issues that can arise from a same-sex union -- issues some state's may not be equipped to handle easily.

Just like several other states across the nation, Florida used to have a ban on same-sex marriage. Although that ban is now considered unconstitutional, it still does not mean that same-sex marriages are allowed in the state. Logically speaking then, it could also mean that same-sex divorces may not be possible either.

This is the issue we have seen crop up a number of times in cases across the nation. They have all raised an important question that we hope to shed some light on in this week's post. The question is this: how do courts handle same-sex divorce when marriage is banned?

It's a tricky question to answer, even if we look to cases out of other states. Take for example the case of the transgender man who requested a divorce in Arizona in 2013 but was denied a separation because it could not be confirmed what gender he was when he married.

Although his divorce was initially denied, it was later approved by a higher court because it wasn't up to the court to question whether the state allows same-sex marriage or divorce, but rather whether the state should allow a marriage, lawfully entered into in another state, to be dissolved.

Another case out of Texas recently highlighted the same issue of recognizing an out-of-state same-sex marriage as legal only for the purposes of granting a divorce. Unfortunately in this case, the judge did not come to the same conclusion as the Arizona court had and denied the couple their request for divorce.

These two cases, though they are governed by a different set of laws, highlight the legal issues same-sex couples face in states where same-sex marriages are banned. They're issues our Brandon readers could easily face, necessitating the need to legal counsel as well.

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