Same-Sex Marriage & Divorce

Last month the U.S. Supreme Court found that the Defense of Marriage Act (DOMA) was unconstitutional as it violates the Fifth amendment in failing to provide due process for all. DOMA was initially enacted in 1996 and provided that the federal government could refuse to recognize same-sex marriages granted under state laws. This resulted in same-sex couples being denied federal marriage benefits available to heterosexual couples including, but not limited to, insurance benefits for government employees, social security survivors’ benefits, evaluating financial aid eligibility and filing joint tax returns.

While the federal government will no longer discriminate against same-sex couples who have been married in a state recognizing same-sex marriage, there may still be unique issues as it relates to divorce. For one, only states granting same-sex marriages will be able to do the divorces. With divorce there is often a residency requirement of six months or more meaning one of the parties may need to relocate and establish residency in a state that can preside over the divorce action before it can proceed. Further, if same-sex couples have children and subsequently separate, there are issues they can run into as far as custody. For example, PA custody laws state exactly which persons are eligible to even apply for custody rights and limit that group to the parents, grandparents, or third persons standing in loco parentis. Accordingly, if the non-biological parent hasn’t already adopted any children thereby making them a parent, they could run into issues establishing standing for custody. To date, PA does not recognize same-sex marriages. The ACLU did file a lawsuit to allow same-sex marriage in PA following the decision on DOMA.

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