This past week there was a highly publicized decision rendered by the high court in the state of Rhode Island that prevented married same-sex Rhode Islanders from getting a divorce. Ironically, Rhode Island does not have laws legalizing same-sex marriage. However, that is not the basis for the recent decision preventing the divorce, the court’s decision was based on its interpretation of the state’s law on the family court’s authority regarding divorce. This particular same sex couple was legally married in Massachusetts, the only state in the United States that legalized same-sex marriage. Massachusetts permits Rhode Island and New Mexico same-sex couples only, to come to the state and marry. The state limits the out of state same-sex couples to these two states because at the time of enactment, these were the only two states in the U.S. that did not have laws clearly prohibiting same-sex marriage.

Interestingly, however, if Massachusetts, Rhode Island or New Mexico same-sex couples legally marry in the state of Massachusetts, there are some states that will recognize their marriage as legal even if that state illegalizes such marriages. New York, specifically, recently had a trial court rule that a valid Canadian same-sex marriage will be recognized here in New York. Under the legal theory of comity, a country must recognize the laws of another country on such issues, as long as it does not violate any of the former’s public policies. And although the decision has not made it to the state’s highest court, it is a major triumph for those same-sex couples that marry elsewhere and subsequently relocate to New York. Consequently, Congress passed the Defense of Marriage Act in 1996, which permits individual states to opt out of recognizing another state’s same-sex marriage. As a result, many states have enacted laws or Constitutional amendments either explicitly defining marriage or specifically prohibiting the recognition of out of state same-sex marriage. New York is one of the few states that have not enacted any such law, although the legislature currently has a committee addressing this issue. And although the highest court recently rendered a decision stating that it is not unconstitutional to ban same-sex marriage, there is no such law yet. Thus, the trial court’s position in its ruling, was that because there is currently no such law on the books prohibiting the recognition of foreign marriage, there is no viable reason to deviate from New York’s longstanding tradition of recognizing these marriages, particularly those that could not legally be performed here.

New York City (and other counties in New York) do permit same-sex couples to enter into domestic partnerships. Although the entitlements under a domestic partnership are limited, it does entitle same-sex couples to enjoy some of the same benefits that heterosexual couples are afforded, i.e. healthcare benefits for the domestic partner. (See my blog on Dissolution of Domestic Partnerships). So in essence, if a same-sex couple marries in Massachusetts (or any other country that legalizes same-sex marriage) and moves to New York, their marriage would be recognized as any other marriage, if the trial court’s decision is upheld on appeal. Therefore, the rights and benefits afforded to New York’s married heterosexual couples would be extended to its same-sex couples legally married elsewhere. Those rights would extend far beyond what domestic partners are entitled to, including benefits ranging from spousal retirement benefits to child custody to the evidentiary marital privilege exercised in court proceedings.

However, it is not the rights or the benefits same-sex married couples are entitled to that raise questions, but the authority New York courts have to divorce these same-sex married couples. Divorcing same-sex couples here in New York can raise same or similar concerns as raised in Rhode Island. While New York has not promulgated a “marriage recognition” law, specifying that a legal marriage is limited to man and woman, it has no law setting forth specific requirements for divorce either. Aside from residency requirements, the legal grounds for the divorce and other procedural criteria, nowhere in the Domestic Relations Law is divorce actually defined. Further, the New York Constitution, Article 1, Section 9 merely states “…nor shall any divorce be granted otherwise than by due judicial proceedings…” and makes no further mention of one’s rights to divorce.

It will be interesting to see where this goes. We are probably not that far from being faced with a similar situation here in New York and will be forced to deal with it given the gay and lesbian population.

If you have a question about divorce, domestic partnership or any related issue please contact my office for a consultation.

CORRECTION: My last blog entry erroneously stated that New York’s statute of limitations period for vacating an Acknowledgement of Paternity on the basis of fraud, duress or material mistake of fact was one year. However, nowhere in the applicable section of the Family Court Act does it make reference to this one year period. However, it is presumed that the statute of limitations period for a claim of “fraud” would apply instead, thus possibly tolling and extending the period beyond the six-month period for vacating the Acknowledgement of Paternity.