‘Til Death Do Us Part: The Difficulties of Obtaining a Same-Sex Divorce

Shapiro, Ellen | June 19, 2013

This Article explores a problem faced by many wedded same-sex couples: the difficulty in obtaining a divorce. Suppose two men from Pennsylvania travel to Massachusetts to obtain a marriage license and return to Pennsylvania shortly thereafter. If their marriage breaks down, the couple will be unable to divorce in the state because Pennsylvania refuses to recognize the marriage for any purpose. Moreover, due to Massachusetts’ residency requirement, the couple cannot simply travel back to Massachusetts to divorce. Because this problem is in part encouraged by state mini-DOMAs, and the Supreme Court has the opportunity to rule on DOMA’s constitutionality, this Article will also explore the various rationales for holding DOMA unconstitutional, how each affects mini-DOMAs, and thus same-sex divorce. If mini-DOMAs are permitted to stand, this Article urges that all States be required to recognize same-sex marriage at least for the limited purpose of granting divorce so that married same-sex couples will no longer find themselves “wedlocked.”