Kim Stephan and Kate Peck spent a recent evening in the living room of their cozy home in Philadelphia reminiscing about the night they got engaged. Peck was a smooth operator: She invited Stephan to what she claimed was an exclusive Moby concert at a local concert hall, but there was no concert. Stephan was confused, at first, when she walked into the dark empty room. But then a spotlight clicked on, illuminating Peck, standing on stage dressed in a suit, a bucket of ice chilling a bottle of champagne at her feet. Peck didn’t even have to ask the question. Stephan said yes.
Like all same-sex couples in Pennsylvania who want to get married in their home state, Stephan and Peck are anxiously awaiting the day the state overturns its ban on same-sex marriage. Pennsylvania formalized its ban in 1996 when, in the wake of the federal government’s passage of the Defense of Marriage Act (DOMA), it amended its Family Code:
It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.
Advocates believe it’s only a matter of time before the ban is overturned; there are currently three key cases seeking to make that happen. In Philadelphia, a U.S. District Judge will weigh the “marriage recognition” issue in May. Meanwhile, the American Civil Liberties Union has filed a federal lawsuit on behalf of 21 residents, alleging that Pennsylvania is violating residents’ Equal Protection Clause of the 14th Amendment; that case is will be heard in Harrisburg in June. A third case, in state court, involves 28 residents who obtained wedding licenses from D. Bruce Hanes, the Montgomery County clerk who briefly became a national media sensation after granting 174 wedding licenses to same-sex couples last year, until the state demanded he cease and desist.
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Stephan and Peck look forward to getting married, but they’re also waiting for the ban to be reversed for another important, though less-discussed, reason: Legal gay marriage means legal gay divorce.
Even though they broke up, Stephan and her ex, Grace (not her real name), got married in New Hampshire. Their marriage is legally recognized in 17 states, the District of Columbia, and, since a critical portion of DOMA was knocked down, in the eyes of the federal government. But that marriage can’t be dissolved in Pennsylvania, because Pennsylvania doesn’t recognize same-sex marriage, not even to grant a divorce. In order to get divorced, then, either Stephan or Grace would have to move to a state willing to grant them a divorce, which all have residency requirements. Neither is willing to move, because both women have jobs, and lives, in Pennsylvania, not to mention shared custody of a child.
It’s a situation that advocates call “wedlocked”—when a same-sex couple has gotten married in a state where same-sex marriage is legal, but either live in or move to a state where the practice is banned, and therefore cannot get divorced.
The Same-Sex Divorce Boom
Some 50,000 same-sex couples were married by 2011, and—as a simple fact of modern life—many of them will get divorced.
“It’s not a subject that marriage-equality groups tend to trumpet on their websites, but gay couples are at the start of a divorce boom,” declared a 2013 article in New York magazine. A year later, even as the subject of same-sex marriage makes daily headlines as the country inches toward marriage equality, same-sex divorce does not get a lot of airtime.
Angela Giampolo is a Philadelphia-based attorney who focuses on LGBT issues. She estimates that at least 100 people in same-sex marriages have contacted her trying to figure out how to get divorced. “And that’s just the people who didn’t know any better and came to me asking [about it],” Giampolo told Rewire. “[Then] there are all the people who are fully aware that they are wedlocked, and can’t do anything about it.”
Tiffany Palmer is also an attorney working on same-sex marriage issues. She has represented at least 20 clients. “We’re advising people to move to other states,” Palmer said. Clients have moved to New Jersey, Maryland, and New York.
Palmer points out that recent laws that are generally considered a positive step forward in the fight for same-sex marriage equality negatively affect couples who are wedlocked.
“Since the decision in Windsor“—the landmark 2013 Supreme Court case that struck a central portion of DOMA—“it’s become an even more significant problem for same-sex couples,” Palmer told Rewire. It doesn’t help that the federal government recognizes same-sex couples for tax purposes when the couple is no longer speaking, or won’t agree on how to file, which can trigger an audit. The U.S. Department of Labor now recognizes same-sex marriage, which is great for couples with shared retirement plans, but terrible for wedlocked couples who can’t remove a beneficiary’s name from their paperwork without the beneficiary signing off, or via divorce proceedings.
The situation creates many overlapping legal, and emotional, limbos. Stephan says she tries to think of the situation as a paperwork problem, but Peck admits it bothers her. She shifts in her chair, facing Stephan. “I want to get married to you,” she says. “And I want to have that ceremony, and that part of the relationship happen.”
The Cartography of Divorce Equality
Right now, the nation has a state-by-state patchwork of partnership statuses, ranging from roommates to civil unions to marriage, all determined by geography. There’s a confusing patchwork of same-sex divorce laws, too, that shift as the marriage laws change. Navigating both requires patience, a map, and a good lawyer, because a lot is at stake.
For example, if a wedlocked man who can’t get divorced gets into an accident while visiting a state where his marriage is recognized, doctors may have to call his estranged legal partner regarding medical decisions. Similarly, if a wedlocked woman dies, a percentage of her property or other assets may have to funnel to the legal spouse, despite whatever instructions are outlined in a will.
And of course the situation is downright dangerous for anyone trying to leave an abusive partner.
Like most couples, Stephan and Grace say they didn’t think about divorce when they got married in New Hampshire in 2008. “Nobody told me” that divorce for same-sex couples can be so complicated, said Stephan. “And I didn’t think to ask.”
What’s more, it’s unclear if it’s technically accurate to say the couple got married in 2008. Stephan and Grace participated in a civil union ceremony in 2008; in 2010, a marriage certificate showed up in the mail.
“It said, ‘Congratulations, you’ve been upgraded to marriage,’” said Grace. “’If you don’t want this, please respond, but consider yourself married.’”
New Hampshire isn’t the only government that has mailed out similarly worded, opt-out “upgrades” as categories of partnership have shifted with the law. Stephan shrugs. “I thought, ‘Well, it doesn’t matter here [in Pennsylvania].’”
And practically speaking, it didn’t: They still had to pay a lawyer to manually replicate many of the legal benefits that come automatically with marriage, especially since they raise a son together. However, the automatic “upgrade” mattered a lot when the relationship fell apart.
Ironically, Pennsylvania’s stubborn refusal to acknowledge same-sex marriage is the mechanism forcing same-sex couples to stay married. Pennsylvania could, like Wyoming, not allow same-sex marriages while enabling residents who got married in other states to divorce. But Pennsylvania, the only state in the Northeast that doesn’t allow same-sex marriage and where there are few legal protections for LGBT individuals in general, takes the position that granting same-sex divorce means acknowledging same-sex marriage. Like the Family Code spells out, such relationships are simply “void.”
Like many couples, Stephan and Grace didn’t realize same-sex divorce didn’t exist in Pennsylvania until they tried to get one. Then they figured maybe they could go to New Hampshire to get divorced. But New Hampshire, like almost all states that recognize same-sex marriage, has residency requirements that mandate people live in the state for a specified period of time before a divorce can be granted. Most states that grant same-sex divorces have residency requirements ranging from six months to one year, and many have quirks that vary state-to-state.
Delaware and California, for example, will allow you to file for divorce, but only if you were married there, and if your home state won’t do it. Vermont has the same rule, but only if the couple doesn’t have children.
“People have suggested that I pay rent [for an apartment in New Jersey] for a full year, just so I can get divorced,” said Stephan.
Besides being expensive, falsifying residency in an other state is illegal, though people desperate to end their marriages have been driven to do it.
Instead, Stephan is going to wait for Pennsylvania law to change.
The best bet for Pennsylvania couples who want their equal marriage to mean equal divorce seems to be tying the knot in the District of Columbia. D.C. will dissolve a same-sex marriage for couples who got married there if the couple lives in a state that will not do it.
Stephan and Peck say they advise friends considering getting married to head to D.C. “It’s the gay pre-nup,” joked Stephan.
Even then, though, there are limits to what a court can do in that kind of situation, warns Joyce Kauffman, an attorney based in Massachusetts who specializes in family law and LGBT issues. “Even if you can dissolve the legal relationship and actually get divorced, that court, in another jurisdiction can not make orders about your children, because they don’t have jurisdiction over your children,” she said
Meanwhile, polls show that the majority of Pennsylvanians approve of same-sex marriage. They’re ready to move on. Stephan, Peck, and Grace—and no doubt hundreds of other same-sex couples in the state—are ready to move on, too.