Background. Since Massachusetts legally recognized the right of same-sex couples to marry in 2004, tens of thousands of couples from around Massachusetts and around the country have tied the knot here in the Commonwealth. As we know, the status of marriage provides countless benefits to gay and straight couples alike in areas ranging from inheritance and property rights, governmental benefits and privileges, to child custody and parental rights, just to name a few. But one of the most important (and often overlooked) benefits of same-sex marriage is actually same-sex divorce. Divorce provides both parties in a relationship the benefits of an orderly division of property, assets and liabilities, and promotes the fair and equitable treatment of both spouses in the event of a breakup.
While many same-sex couples have remained here in Massachusetts, some married gay couples have either returned to their home in another state, or moved out-of-state to pursue employment or other opportunities. If you were married here in Massachusetts and moved your family to another state, you may have left one very important thing behind: your marriage!
Our office is contacted increasingly often by out-of-state couples who were married in Massachusetts and who now want to obtain a same-sex divorce. In many cases, both spouses are in complete agreement and ready to cooperate in order to obtain a divorce. Their question to me: Can we file for divorce in Massachusetts? The answer: Probably not.
Massachusetts Case Law Concerning the "Residency Requirement". This dilemma recently played itself out in the case of Francesca Cerutti-O'Brien v. Donna-Marie Cerutti-O'Brien. Francesca and Donna-Marie were married in Truro, Massachusetts, in November, 2006. At the time of their marriage, Francesca was a shop-owner and resident of Massachusetts, and was making routine trips to be with her partner, Donna-Marie, in Florida. Less than one month after the marriage, the couple bought a home together in Florida, with plans to open up a shop in Florida and spend summers in Massachusetts together. Despite marital counseling, the marriage quickly soured and, according to court papers, suffered an irretrievable breakdown in Florida on June 19, 2007. Francesca filed for divorce here in Massachusetts on June 27, 2007.
On the eve of their divorce trial, Donna-Marie moved to dismiss Francesca's divorce complaint on the basis that the Massachusetts Courts could not grant a divorce to the couple because neither of them was domiciled here in Massachusetts. The Court agreed and dismissed the divorce. Francesca appealed.
On review, the Appeals Court affirmed the Probate and Family Court's dismissal of Francesca's complaint for divorce. Under Massachusetts Family Law, the Probate and Family Court can only hear divorce cases in which the grounds for divorce occurred in another state if: (1) the spouses once lived in Mass, AND one of the spouses resides in Mass at the time the complaint is filed, OR (2) at least one of the spouses has resided in Massachusetts for at least one year prior to filing. After all, if the grounds for divorce occurred in Florida, and the parties reside in Florida, then Florida is the most appropriate venue for the divorce, right? Not necessarily!
The Dilemma for Married Same-Sex Couples. The dilemma for many married same-sex couples is that their state of domicile will not grant them a divorce because it will not recognize their marriage. After all, one of the prerequisites for obtaining a divorce is proving that you are married in the first place. In a majority of states across the country, same-sex couples will not be able to establish the existence of a valid marriage. And as many couples have discovered, the state that granted them a marriage now lacks the power to grant them a divorce on account of the residency requirement.
Frustrated yet? Consider this: every time you re-enter Massachusetts, or any of the growing number of states or nations that recognize a Massachusetts gay marriage, you may be considered married in that state for purposes of inheritance, property ownership, medical decision-making, taxes, employment, military eligibility, etc.
Until each and every state recognizes gay marriage, or will at least agrees to grant a divorce to married same-sex couples within its borders, this dilemma represents another undue and heavy burden on LGBT couples and families. I strongly recommend that same-sex couples who are thinking of becoming married here in Massachusetts sit down with an attorney who focuses in LGBT legal issues, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth, whether a prenuptial agreement might be enforceable and provide a proper framework for dissolution of your relationship in a hostile state, or whether and how you might meet the Commonwealth's residency requirement for divorce.