Divorce Equality

Marriage equality eliminates “legal limbo” for couples seeking a split

By Megan Wadding, Nov. 20, 2014.

Carlos Inostroza

Carlos Inostroza. Courtesy photo.

When Arizona’s anti-same-sex marriage amendment was ruled unconstitutional, not only did same-sex marriage become legal in the 31st state, but so did same-sex divorce.

Prior to Oct. 17, if a same-sex couple had been legally married in state that recognized their union, they would have rendered themselves unable to divorce anywhere except the state in which they had originally married. This left many once-married couples stuck in a legal limbo.

“If a person was married to someone they are no longer with, or a couple wants to undo their marriage, the moment the marriage was legally recognized in Arizona, they [now have] the same right as anyone else to get a divorce,” said Claudia D. Work, an attorney with the Campbell Law Group in Phoenix who specializes in family law.

In effect, marriage equality means divorce equality.

“Arizona does not treat marriages that occurred out of state any differently than marriages entered into in Arizona,” Work said. “If you followed the marriage law in the other state or country, then you are married in Arizona and entitled to a divorce.”

Carlos Inostroza, a social worker who has lived in Phoenix for more than a decade, represents half of one such couple. Inostroza married his long-time partner in Massachusetts once same-sex marriage became legal in the state in 2004. Together, they moved to Arizona to be close to family, although their marriage was not recognized here.

After 13 years together, Inostroza and his husband separated and would quickly find out that divorcing would be tricky.

“I looked into [filing for divorce] and was told it was not possible,” Inostroza said. “At the time, the only way to [get divorced] was that one of us [would have] had to move back [to Massachusetts] to establish residency for one year before being able to apply for a divorce.”

Because neither Inostroza nor his (then) husband could move back to Massachusetts just to fulfill the state’s residency requirement to file for divorce and they had to put off getting divorced until the laws changed.

If the marriage is not recognized, neither is the petition for divorce.

Inostroza said that being able to divorce legally was always one of his biggest reasons for hoping that the same-sex marriage ban would be overturned in Arizona.

“I think this only shows how important equality for all is,” he said. “We are all the same [and] we should be allowed to marry who we love, but also be able to divorce and have all the legal and financial protections from the law.”

Still, same-sex couples may find some situational legal hurdles.

“Divorce proceedings should remain substantially the same,” said Cody L. Hayes, Hayes Esquire PLLC family law attorney in Phoenix and founder of the Arizona Center for Divorce Education. “Same-sex couples may encounter additional legal issues, [such as] confirming that both spouses are legal parents of the children, for example, but the process is the same.”

Work emphasized the significance of domestic partnerships and civil unions, too.

“Some of the complications LGBT couples will face are if they entered into a domestic partnership or civil union with each other or someone else before or during this marriage, all of which must be properly dissolved before you are free to marry again,” Work said. “Experienced legal advice or representation may be necessary to ensure that you are protected.”

Both Hayes and Work encourage couples to seek legal counsel prior to filing for dissolution. Hayes also recommends looking into nuptial agreements to protect assets, whether prenuptial or postnuptial, for which he runs a free monthly seminar (visit hayesesquire.com for more information).

“Now we have marriage equality … and we can participate in the divorce system with all of the heartache and expense that comes of it,” Work said. “The old joke ‘let gay people marry so they can be miserable like the rest of us’ has come true.”