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Breaking Up is Hard to Do....

…and same-sex couples who get married may have an especially tough time if they try to divorce. For all the discussion on same-sex marriage, you don't hear very much about what happens when the relationships end. What happens when same-sex couples married in other states break up? Can they divorce in Missouri? In short, no. They have no right to obtain a divorce in Missouri, and often, they end up not being able to divorce at all.

The Defense of Marriage Act, passed under Federal law in 1996, provides that states do not have to recognize marriages issued in other states. Missouri further passed an amendment to the Missouri Constitution prohibiting the recognition of same-sex marriage for any purpose by a wide margin in 2004. Missouri doesn't recognize same-sex marriages, and without a marriage, there can be no divorce. Many states take the same view. With no application of divorce laws, the parties can receive none of the protections available to their divorcing counterparts, such as equitable division of assets or maintenance.

Most states have a residency requirement stating the minimum amount of time you must have resided in the state to be granted a divorce in that state. This means that once a married same-sex couple moves away from the state in which they were married, they can no longer get divorced there. Unless they move to another state that recognizes their marriage, they may not be able to get divorced anywhere. Further jurisdictional issues abound if just one spouse moves to a new state that recognizes the marriage. Without application of domestic relations laws, they are largely on their own and without any guidance from a court in determining custody arrangements for any children they may have and must rely on legal remedies ill-suited to family law situations to deal with division of shared homes, cars, bank accounts, and other assets, as well as debts. Even more complex legal issues may arise when one of the parties dies and leaves behind a partner or even an ex-partner who will be recognized as a spouse in some jurisdictions but not others. It remains to be seen how various courts and legislatures will deal with the myriad of legal issues presented by the "patchy" recognition of same-sex marriages.

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