Indiana Divorce Law to be Tested by Same-Sex Couple

Following the repeal earlier this summer of the federal Defense of Marriage Act, our Northwest Indiana divorce lawyers theorized that Indiana’s own gay marriage laws might soon be challenged.It now seems that could be happening sooner than we anticipated, and its happening in the form of a divorce case that’s been filed in Indianapolis.

The case involves an Indiana man who married his same-sex partner in Massachusetts. The two have since separated and are seeking a divorce.

The problem is that he doesn’t meet the residency requirements necessary to file for divorce in Massachusetts. So, he was directed by his divorce lawyer to file his petition with the Marion County clerk’s office in Indianapolis.

The problem, of course, is that Indiana doesn’t recognize same-sex marriages. Lawmakers say next year, they intend to push for the law to be entered into the Indiana constitution, making it much tougher to repeal.

However, unlike some states with similar statutes defining marriage strictly as a male-female union, Indiana also has a provision specifically barring same-sex divorce.

That means that unless the laws change in either Indiana or Massachusetts – or this man moves to Massachusetts – he is unable to obtain a divorce.

It’s unclear, though, what role the repeal of DOMA could have in this case and others like it. One Indiana University Maurer School of Law associate professor was quoted as saying that DOMA could potentially change the outcome of this case. The repeal of DOMA doesn’t require that the state recognize same-sex marriages or divorces.

However, if a judge wanted to rule in favor of recognizing one of these unions, or in providing a divorce, he or she could use the U.S. Supreme Court’s opinion in the DOMA case as legal backing.

So the outcome of this case could just depend on how the judge handling it wants to interpret the law.

The Supreme Court decision focused on whether the federal government had a legal right to deny tax, pension and health benefits to same-sex couples in states where they were legally allowed to marry. Specifically, the question was whether denial of these benefits was a violation of the Fifth Amendment, which guarantees equal protection and due process.

In the end, the court ruled that DOMA did in fact violate the Fifth Amendment and the federal government had to extend the same rights to legally-married gay couples as it does to straight ones. However, it doesn’t force states like Indiana, which don’t recognize gay marriage, to now recognize it in any capacity.

This case is a wild card because there is really no telling how the family law judge will rule. A lot of people are watching closely to find out.

If the judge strikes down the divorce request, the plaintiff’s attorney said he will likely appeal to the Indiana Court of Appeals. more Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Same-sex divorce request to test Indiana law, July 2, 2013, Associated Press More Blog Entries: Indiana Gay Marriage Battle Imminent Following DOMA Ruling, July 3, 2013, Indiana Divorce Lawyer Blog