Since its marriage equality law took effect in 2010 the District of Columbia has welcomed same-sex couples from other states to come to the city to get married.
But according to local attorneys and at least one D.C. judge, if any of those couples come back to the city to get a divorce they will likely be eligible only for the divorce itself.
Divorce related provisions readily available to straight married couples such as alimony, legal separation and court approved division of jointly owned property will likely be denied to same-sex married couples unless one of the spouses becomes a D.C. resident for six months.
“What D.C. judges have been doing is granting these divorces but not granting or addressing any other issues, such as alimony, property division relief, etc.,” said local family law attorney Marjorie Just.
“Judges are interpreting the law in a way that limits their authority to just granting a divorce but nothing more,” Just said.
Just was referring to the Civil Marriage Dissolution Equality Act, which the D.C. Council passed and Mayor Vincent Gray signed in 2012. Supporters said the law was aimed at exempting out-of-town same-sex couples that marry in D.C. from a six-month residency requirement in the event they seek to obtain a divorce.
Gay rights advocates, who asked the Council to pass the law, noted that the exemption was needed for same-sex couples that marry in D.C. but live in states like Virginia that don’t recognize their marriages.
Unlike straight couples, whose marriages are recognized everywhere, same-sex married couples can’t get a divorce in a state that doesn’t recognize their marriage. That forces them to return to the jurisdiction in which they were married to obtain a divorce. Many states, including Maryland, have a six-month residency requirement for obtaining a divorce.
According to attorneys familiar with the D.C. Superior Court’s family court division, judges have interpreted the D.C. law in a way that limits its scope to an “absolute divorce,” a legal term used to describe a divorce alone.
American University Law Professor Nancy Polikoff and local attorney Michele Zavos, who specialize in gay family law, each said they believe the D.C. statute does give judges the authority they need to address issues like alimony and property division.
“I think there is a very good argument that the court does have power over the property and support issues, but it would be much cleaner to resolve the ambiguity by making that clear in the statute,” Polikoff told the Blade. “For that reason, I agree that the preferred course of action at this time would be to amend the statute.”
Zavos agreed with that assessment.
“I think we probably do have to go back to the City Council to make it very clear that the intent of this new statute is to cover all aspects of divorce, including legal separation,” Zavos said. “So I think we’re going to have to do that.”
Polikoff and Zavos said child custody related issues are clearly addressed in separate laws in D.C. and other states, and those issues must be addressed in the state in which the child lives at the time of a divorce.
Zavos released to the Blade a copy of a January 2013 order issued by D.C. Superior Court Judge Alfred S. Irving, Jr., denying a request by one of the partners of a same-sex couple living in Virginia to obtain a legal separation. The couple, whose identity was redacted from the order, was married in D.C.
“The District of Columbia very recently amended the residency requirements to permit an ‘action for divorce by persons of the same gender, even if neither party to the marriage is a bona fide resident of the District of Columbia…’ and neither party to the marriage resides in a jurisdiction that will maintain an action for divorce,” Irving wrote in his order.
“The amendment, however, only pertains to actions for divorce, not actions for legal separation,” he stated in his denial order.
D.C. Council Chair Phil Mendelson (D-At-Large), who introduced the Civil Marriage Dissolution Equality Act of 2012, said he’s willing to introduce legislation this year to fix the problems that are just now surfacing regarding same-sex couples.
“We were very clear when we adopted the law in 2012 that, as usual, we were trying to treat same-sex couples the same as heterosexual couples,” Mendelson told the Blade on Tuesday.
“So this distinction that somehow a same-sex couple that lives in another state can only get a divorce but can’t get any of the other modifications that heterosexual couples can get – that was not our intent,” he said.
Asked if he thought election year politics might make it difficult for the Council to pass a bill this year to correct the divorce related problems facing out-of-town same-sex couples, Mendelson said it would not.
“I don’t like the speculation about election politics,” he said. “The reality is the Council is in session until the end of the year. And if the attorneys give me the suggestions for how to fine-tune the law we’ll try to proceed this year to do it.”
Rick Rosendall, president of the Gay and Lesbian Activists Alliance, said GLAA would support legislation to “to fill any legal gaps encountered by same-sex couple, as we have done in the past.”
Once introduced, Mendelson’s bill to correct the divorce law problem would go to the Council’s Committee on the Judiciary and Public Safety, which is chaired by Council member Tommy Wells (D-At-Large).