Same Sex Marriage ... and Divorce

My friend, David Bartenfield, http://www.bartenfieldinjurylaw.com wanted to know what NC courts will do when people of the same sex are validly married in another state, move here, and want to be divorced here.  Must NC grant the divorce even though our state does not recognize the union in the first place?

Earlier this month, Becky Watts, NC Board Certified Specialist in Family Law, from Charlotte http://www.kruschlaw.com/ provided the NC Bar family law list-serve participants a case from Wyoming dealing with the issue and suggesting NC could use the same analysis.  Two women were legally married in Canada in 2008. One filed an action for divorce in Wyoming in February 2010. The district court in Wyoming determined it did not have subject-matter jurisdiction to entertain an action to dissolve a same-sex marriage. The action was dismissed. The Wyoming Court of Appeals reversed and remanded for the reinstatement of the divorce proceeding.  Christiansen v. Christiansen, 2011 WY 90, 253 P.3d 153, 154 (Wyo. 2011).

The Wyoming law, like our law, recognizes only marriage between a man and a woman.  Also, as in NC, Wyoming recognizes marriages valid in other states that may not be in this state. The best example is common law marriage. NC does not allow it, but if you were married in South Carolina, which does recognize common law marriage, moved to NC (for at least 6 months) and wanted to be divorced in NC, our court would assume jurisdiction and you could be divorced here. The Wyoming court made its decision, as NC courts do in common law marriage cases, based on conflict of law principles - not Constitutional principles.

Whether or not North Carolina courts choose to allow divorce in same sex marriages based on conflict of law analysis, is NC required to do so by the full faith and credit clause of the United States Constitution?  The argument against: North Carolina would not have to recognize an out of state gay marriage because there is a strongly held public policy against the marriage.  Marriages "contracted or performed outside of North Carolina between individuals of the same gender are not valid in North Carolina."   N.C. Gen. Stat. Section 51-1.2.  That argument depends, though, on the view that interstate recognition is a matter not for full faith and credit but for conflict of laws.

The argument for recognition of same sex marriages in North Carolina and all states, regardless of whether same sex couples are married there, is that the full faith and credit clause demands it.  Individual states are not at liberty to deny full faith and credit based on public policy.  There is "no roving public policy exception to the full faith and credit due judgments." Baker by Thomas v. GMC, 522 U.S. 222, 223, 118 S.Ct. 657, 139 L.Ed. 2d 580 (1998).