Consistency in Marriage Laws

Georgia attorney Randall Kessler, in the Tuesday, May 12, 2009 edition of the Atlanta Journal-Constitution, grapples with the puzzling question of how to recognize same-sex divorce as a growing number of states, but still a distinct minority, are adopting same-sex marriage. I respect the beliefs of those on both sides of the debate, and my focus here is not to address any of the political issues. The critical point to acknowledge is that, for right now at least, same-sex marriage is here.

Whether you are glad to see the definition of marriage expanded, or whether you would prefer a return to the definition of marriage as exclusively the union of one man and one woman, practical concerns remain in either case. No matter whether you believe same-sex marriage should or should not be legal, all of us must be concerned with the impact of inconsistent laws. Inconsistency, not policy disagreement, creates the most problems and frustration.

Therefore, what the country needs now is consistency in its matrimonial laws. Domestic relations law is, with relatively few exceptions such as tax regulations, the exclusive province of the states. The problem is not necessarily THAT same-sex marriage is happening, but instead HOW it is evolving inconsistently and producing disparate results. I envision several problems with the current system:

1) “Forum-shopping” is implicitly allowed now with same-sex marriage, and it is prohibited in most other areas of law. You can get married in a state in which you do not live. That’s not unusual. Texans get married in Las Vegas. Montanans tie the knot next to a volcano in Hawaii. But the difference is that opposite-gender marriage is legal in every state, so straight couples have no trouble marrying wherever they want, returning to their domicile, remaining there for the required minimum stay, and then using the courts in their state of domicile to dissolve their marriage if they later choose to. With same-sex marriage, I believe the simplest way to eliminate forum-shopping is for the states that permit same-sex marriage to restrict it to legal residents or of that state who have continuously remained there for at least a year. Doing so would make it far more likely that no one would come to the state just to get married, which would reduce the number of people likely to move out of state and have to enforce a custody and child support order from State A in State B.

2) Judgments of divorce, or decrees, as they are known in some states, should be recognized as contracts even if a state does not wish to confer “dissolution” status on them. If the document is understood simply as a binding agreement between two parties, the policies of the respective states are irrelevant.

3) Child support awards are not implicated by interstate differences in marriage laws. You don’t have to be married to be a party to a child support order. Unmarried heterosexual people have them all the time. All you need is a written acknowledgement of parenthood, and then you have a contract between the two parents. A written declaration in the judgment of divorce, specifying that all disputes arising out of the dissolution will be litigated in the courts of XYZ state, and that the laws of XYZ state will govern the dissolution.

4) The same is true with custody and visitation orders. Despite the concern that such orders might be unenforceable or disregarded across state lines according to the whim of either state, there are practical ways around it. You can specify that parents will not move across state lines, and if they do, a particular state will retain jurisdiction over the matter. You can also enforce custody and visitation agreements as a matter of contract law.

Like any new development, same-sex marriage will require some fine-tuning, at least until its constitutionality is definitively determined. Until the issue is settled, those who are subject to it (the spouses and, most importantly, any children they may have) deserve legal clarity.