Gay marriage is forever in Oklahoma
Divorce is off-limits for gay couples in many states
KATE LUNAU | July 16, 2008 |
First comes love, then comes marriage — and then, for many couples, comes divorce. Unless, that is, you're gay and you live in a state that doesn't recognize your union. Such is the case for Cait and Stephanie O'Darling. Married in Toronto, they're now seeking a divorce in Oklahoma (where same-sex marriage is officially banned). Couples who find themselves in this predicament can face a terrible prospect: being unhappily married for life.
Cait O'Darling filed for divorce in Oklahoma in 2006. It was initially granted — until the Tulsa judge realized her spouse (listed as "S. O'Darling" in court paperwork) was a woman. After being informed of this fact by a local reporter, the judge swiftly cancelled the divorce. The case went all the way to the Oklahoma Supreme Court, which recently ruled that the judge had the right to throw out the divorce decree. But it also ruled that Cait O'Darling is entitled to a hearing before the case is dismissed. Laurie Phillips, O'Darling's attorney, suspects the Tulsa court is hesitant to grant the women a divorce because it could be construed as a tacit recognition of same-sex marriage.
If the state doesn't recognize your marriage, why get a divorce? Whether Oklahoma likes it or not, the O'Darlings are "legally married," says Shannon Minter, legal director of the California-based National Center for Lesbian Rights. While 45 states officially do not recognize same-sex marriage, he says, if the women travel to a jurisdiction that does, "there could be serious consequences. Your partner could have a strong legal claim to your assets." And until you get divorced, of course, you can't get married again.
Unfortunately, returning to Toronto to split up isn't an option. While non-residents can marry in Canada, at least one spouse must be a resident for one year before filing for divorce, says University of British Columbia law professor Susan Boyd.
"In some states they're married, in other states they're not," Phillips says. "It's kind of confusing."