Same-Sex Divorce In The United States: Protecting The Interests Of The Children

In light of recent political, legal, and legislative developments, the status of same-sex couples across the United States has become increasingly complex. This article focuses on the issue of same-sex divorce in a mobile society. When a same-sex couple moves from a state recognizing same-sex marriage—or from Canada—to a state that does not expressly recognize same-sex marriage, dissolution of that marriage can become a byzantine problem much more complex than a state’s “official” position on same-sex marriage. Relevant factors can range from the state’s legislative and executive pronouncements affecting homosexual citizens in areas such as pension benefits and health plans to seemingly unrelated judicial decisions concerning other aspects of family law.

This article examines this patchwork of factors and their implications. It ultimately concludes that the presence or absence of children may be the key factor, whether articulated or not, in judicial decisions regarding whether to open the courthouse doors to a same-sex couple.