While 19 states and Washington, D.C. currently recognize gay marriage, same-sex couples that want to divorce but reside in a state that does not recognize the legality of their marriage must confront the issue without the support of the family law court system. According to Jessica Woll, managing partner of Woll & Woll, P.C., a Michigan-based divorce and family law practice with a niche expertise in complex family law issues, separation agreements, similar to a post-nuptial agreement, may serve as a more feasible and valid option for same-sex couples that want to divorce in a state that does not recognize gay marriage.
Currently residents of Michigan or any other state that does not recognize same sex unions, yet are legally married to a same sex spouse, have only one way to end the marriage in the eyes of the law: move to a state where the marriage is legally recognized.
“Following a move to a state that will allow divorce; the divorcing couple will have to meet the residency requirements of that state, which usually takes six months, before being able to file for divorce there,” Woll said. “This is not a practical option for most couples, though, considering it means having to leave home, friends, family and career to move to a new locale to legally end their marriage.”
Woll recently handled such a case for a young, same-sex couple who married legally out east while residing in Michigan. Both individuals had prosperous careers and in the first few years of marriage, managed to buy a $700,000 home while saving a significant sum of money for their future. However, less than five years into the marriage, the couple decided to call it quits. Both parties worked hard to establish themselves professionally in the Detroit area; so although it was a mutual decision to end the marriage, neither wanted to move out of state and establish residency elsewhere to obtain a divorce.
“After being physically separated for about six months, one of the parties wanted peace of mind knowing the assets accumulated after the split would not be divided with the estranged spouse when the parties are actually able to obtain a divorce,” Woll said. “My solution was to create a separation agreement/contract for the couple similar to a post-nuptial agreement.”
While a state like Michigan might not recognize a post-nuptial agreement as valid between a same-sex married couple because it does not recognize the marriage in the first place, Michigan and states like it will recognize a valid contract entered into between two competent adults. Further, the separation agreement can be enforced in a different state that allows same-sex couples to marry, if in the future, one or both of the parties moves to a state that has legalized gay marriage.
“If Michigan does pass a law allowing gay marriage, the couple can enforce their separation agreement down the road when the law changes,” Woll said. “When entering into a separation agreement in a state with no gay marriage laws, the document should contemplate all of the issues one would encounter in the event of divorce, including division of assets, spousal support, attorney fees, division of debts, whether fault should be considered, etc.”
Woll says the document should also include protection in the event that a court sees only part of the document as legitimate.
Specific issues to cover include offering protection for both parties related to assets and liabilities, addressing the scenario where one party moves to a state that recognizes same-sex marriage, and ensuring no laws or provisions invalidate or affect the contract/agreement deeming it illegal or invalid.
“It is unsettling for same sex couples to live in a state that does not consider their marriage to be lawful while knowing the state could change its position at any time,” Woll said. “Use of a separation agreement/contract in uncertain times is the best defense, short of establishing residency in a state where same-sex marriage/divorce is recognized and until the laws change.”
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