As more and more states are legalizing same sex marriage, the number of homosexual couples who have gotten married has naturally increased. Like with any marriage, same sex spouses may encounter marital problems and make the difficult decision to get a divorce. However, divorcing a same sex partner may not be as procedurally straight forward, particularly if the couples has moved from the state in which they were married to a state that does not recognize same sex marriage. For example, same sex marriage is currently prohibited in Georgia. OCGA §19-3-3.1(a). Further, the law in Georgia is clear that the courts “have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.” OCGA §19-3-3.1(b). Thus, if a same sex couple gets married in New York (where same sex marriage is legal) and then moves to Georgia, they will have absolutely no recourse in the court system if their marriage later falls apart.
So what is this couple to do? The answer is not clear. Most states require that a party be a resident of that state for a certain period of time before they may file for divorce there. In Georgia, for example, a person cannot file for divorce unless he/she or his/her spouse has lived in the state for at least 6 months. OCGA §19-5-2. While each state has different residence requirements, they all have some sort of time requirement in place to prohibit people from shopping around for the best place to get divorced. This puts same sex couples in a very difficult position.
It is possible that the majority of same sex couples will remain in the state in which they were married, since that state clearly provides rights and protection to same sex couples. However, sometimes a spouse may have to move due to a job or otherwise. While the outcome is not clear right now, hopefully, if same sex marriage continues to become recognized in more states, a solution will be found.