Same-sex divorce "a luck-by-luck" situation

Jefferson City, Mo. (AP) — A lawyer for a man seeking a divorce from his husband argued Wednesday before the Missouri Supreme Court that the state should dissolve the union, even though the state constitution doesn't allow same-sex partners to wed.

The case involving the couple who married two years ago in Iowa, one of several dozen states that allow same-sex unions, highlights yet another uncertainty facing gay couples in Missouri, where marriage laws vary by county.

The case is not expected to address whether gay marriage should be legal throughout the state, and several cases addressing the issue are winding their way through the courts. Same-sex marriages have been performed recently in counties surrounding St. Louis and Kansas City. And nationally, there have been contradictory rulings at the federal court level.

The U.S. Supreme Court could take up the topic next year, but in the meantime, lawyer Drey Cooley said the couple feels "like they're stuck."

His client, identified in court documents only as M.S., "just wants the same rights that anyone else would want to be in that situation — to get dissolved and move on."

If the state's high court rules against the request, any gay marriages ended in Missouri could be revalidated, Cooley said. It wasn't clear, however, how many such cases that could affect.

The couple separated in August 2013. A St. Louis County Circuit Court judge denied a petition for divorce in January, citing Missouri's constitutional ban on same-sex marriage. The case came before the Missouri Supreme Court on appeal, and because the state was not a party in the divorce case, there was no attorney defending the constitutional provision in court.

That ban has been thrown into question by recent rulings, including an October decision in Jackson County, which includes Kansas City, saying Missouri must recognize same-sex marriages performed in other states.

Missouri's Republican legislative leaders said Wednesday that they are seeking to intervene to appeal that ruling, which Democratic Attorney General Chris Koster has said he won't fight.

Koster, however, is appealing two other cases: a federal court ruling in Kansas City and a state court ruling in St. Louis that both invalidated the state's ban on gay marriage and prompted clerks in St. Louis city and county and in Jackson County to issue marriage licenses to gay couples, even though officials in other counties aren't following suit.

Cooley said the state Supreme Court judges could avoid ruling broadly on Missouri's gay marriage ban but still order same-sex unions to be treated like other out-of-state marriages for the purpose of divorces.

He said, for example, that common-law marriages aren't allowed in Missouri but still can be dissolved by a judge because such partnerships are recognized by other states.

The Missouri couple's situation is mirrored in other states banning gay marriage, although states that allow same-sex couples to marry also typically allow divorce if residency is established.

A few states have loosened residency requirements to clear the path for out-of-state couples to get an uncontested divorce, though they won't address child custody, visitation, financial support or other issues stemming from those divorces.

Divorce in states banning gay marriage is less certain.

Evan Wolfson, founder and president of Freedom to Marry, a New York-based group that supports gay marriage, said same-sex divorces are done "on a case-by-case, or almost a luck-by-luck basis."

An Alabama judge in March dismissed a lesbian couple's request to divorce after marrying in Iowa, and the Nebraska Supreme Court dismissed a similar case in June on procedural grounds. Another case on whether to allow divorces for same-sex marriage is pending before the Mississippi Supreme Court.

By Summer Ballentine, Associated Press. Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The Gayly – December 5, 2014 @ 10:10am