One of the over-looked “rights” of traditional marriages is the right to end a marriage through divorce. Because Tennessee doesn’t recognize the right of same-sex couples to marry in the first place, several of our clients are experiencing difficulties if they choose to legally end their marriage. The subject is one of heated debate nationally, as well as in Tennessee. For a good description of the national debate, click here. In Tennessee, Nashville attorney Abby Rubenfeld has filed suit to require recognition of same sex couples. That lawsuit is described in this article. At Held Law Firm our divorce attorneys are currently researching several options to ensure this right for same-sex couples. Right now, we have identified three potential options.
First, we can obviously have the marriage annulled, which means to declare it void under Tennessee law. We don’t like that option for two reasons. First, it feels dishonest. Yes, you are breaking up, but that does not mean you were never married. We don’t like to take a position that supports the bigotry behind the amendment. Second, it is questionable whether such an annullment would be binding on other states, which would render you “married” in one state, and “not married” in another. We see the potential for lots of confusion. For instance, if you both die without a will, and some of your heirs live in a state that recognizes the marriage and some don’t, what does that mean for them?
Second, we can treat the marriage as a business partnership, and ask the Court to dissolve it, attributing assets and debts to individual partners. This feels like a non-controversial way to divide up the “stuff” you have accumulated, but again, it does nothing to end the marriage. And in states that recognize that marriage, we feel you could still be held liable.
The third option holds a great deal of promise. We are researching whether an old Tennessee doctrine, called “marriage by estoppel”, may provide an avenue to divorce same-sex couples in Tennessee who were married legally in another state. Stay tuned to this website as our research progresses, or call us for a consultation, and we can discuss what we’ve found and how it may apply in your individual circumstances.
