GAY DIVORCE? LESBIAN DIVORCE?

LACK OF SAME SEX MARRIAGE RECOGNITION IN INDIANA
MEANS SAME SEX COUPLES MAY NOT DIVORCE IN INDIANA.

Indiana Courts to date have not only failed to allow same sex couples to legally marry in Indiana, but have failed to recognize same sex marriages which were legally performed in other States. In fact, refusal to recognize out of State, legal, same sex marriages is part of Indiana’s statutes. Indiana Code 31-11-1-1 states:

“(a) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.”

The issue of whether this Indiana statute violates the U.S. Constitution is currently before the Seventh Circuit Court of Appeals, with the decision expected by early Fall1. This decision will automatically decide whether States such as Indiana may continue to disregard the legal, same sex marriages performed in other States, when some of those couples decide they want to end their unions. Currently, the local level Indiana Courts which handle the divorce cases of heterosexual couples dismiss any cases brought as a “divorce” or “dissolution of marriage” if filed by same sex couples regardless of whether the couple was married in another State which performs legal marriages for same sex couples. This leaves these Indiana couples with no resolution of their desire to divorce unless the State in which they were married allows nonresidents to file for divorce in their State.

Under current Indiana law, any two people with joint property interests may bring a civil action to separate those property interests. However, a legally recognized married couple in Indiana automatically has a joint property interest in all of the property either or both of the parties own, regardless of how it is legally titled. For example, if a house is titled only in the husband’s name, the wife still has an equal property interest in the residence which must be acknowledged in the divorce case in Indiana. This joint property presumption is granted by Indiana statute. On the other hand, a same sex couple has no rights granted by Indiana statutes even if they were legally married in another state. Thus, same sex couples in Indiana must have a Domestic Partnership Agreement in place, along with the legal work necessary to title all of their property jointly, in order to have anything close to equal property rights when and if their unions dissolve in Indiana. This is true even if they are legally married in another State.

We at Duvall & Fall, P.C. regularly represent people going through the dissolution of a same-sex relationship. We also regularly represent same sex couples who take the step to legally document their intentions concerning their domestic partnership. In the event of a break up, such documentation is critical. Until the law of Indiana changes, the best course of action for a same sex couple in Indiana is to have legal documents prepared which state the couple’s intentions regarding their property in the event of a later termination of their relationship.

 

1This is an appeal by Indiana Attorney General, Greg Zoeller, of the case, Baskin v. Bogan, in which Judge Richard L. Young, the Chief United States District Judge in the Southern District of Indiana, on June 25, 2014 entered summary judgment for the plaintiffs and held:

“The state, by excluding same-sex couples from marriage, violates Plaintiffs’ fundamental right to marry under the Due Process Clause. See Wolf, 2014 WL 2558444, at * 21; Lee v. Orr, No. 1:13-cv-08719, 2014 WL 683680, * 2 (N.D. Ill. Feb. 21, 2014) (“This Court has no trepidation that marriage is a fundamental right to be equally enjoyed by all individuals of consenting age regardless of their race, religion, or sexual orientation.”); Whitewood, 2014 WL 2058105 at ** 8-9; Latta, 2014 WL 1909999 at * 13; DeLeon, 975 F. Supp. 2d at 659; Bostic, 970 F. Supp. 2d at 483; Kitchen, 961 F. Supp. 2d at 1204.”

2014 U.S. Dist. LEXIS 86114, pp. 30, 31 (emphasis added). (Also, as a matter of note, attorney Lesa C. Duvall, was one of the expert witnesses who submitted an Affidavit for the plaintiffs in the Baskin case.)

If the Seventh Circuit Court of Appeals upholds the ruling in Baskin, the case is likely to proceed with others around the country to the U.S. Supreme Court. Then it will be up to the highest Court in the land to decide if all of its citizens have the legal right to marry.