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The catch-22 of same-sex marriage and divorce

Florida residents should be interested to know that recently, more and more married couples of the same sex have started to seek divorce. They have served to highlight a growing problem that faces those couples who happen to reside in states that refuse to recognize same-sex marriage.

The problem for same-sex married couples essentially is a problem of geography and conflicts in state laws. If a married same-sex couple who is seeking a divorce happens to reside in a state in which their marriage is not legally recognized, the odds are that their ability to get a divorce is simply near impossible. It doesn't matter if the couple was married in a state in which same-sex marriage was legally recognized.

Generally, couples who find themselves in this predicament have only three courses of actions at their disposal. One option is to move to a state where same-sex marriage is legal. The problem with that option is that most states that have legalized same-sex marriage also have residency requirements for people who wish to divorce. So, in most cases, the residence requirement effectively means that the family must move to that state and live there for a specified period of time, which is often up to a year, before they become eligible to start divorce proceedings.

A second option is to file for an annulment. The issue with this solution is that if there is any co-mingling of assets between the couple or if there are children involved, annulments can prove to be particularly messy affairs. In general, annulments do not settle issues that concern property division and parental and child custody rights.

The last option is to bite the bullet and go to court. This can prove to be the least fruitful of three options available. Generally speaking, same-sex married couples find that it's often difficult, if not impossible, to get a judge to grant a divorce if the judge doesn't think that the couple is married in the first place. In Florida, same-sex marriage is not recognized and is considered illegal, thus ruling out divorce as a viable option.

For anyone who has questions about divorce, same-sex marriage and other family law legal issues may want to consider talking with a family law attorney.

Source: USA Today, "For some same-sex couples, breaking up is hard," Richard Wolf, July 25, 2014

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