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Nebraska court denies divorce in lieu of Defense of Marriage Act

On Behalf of | Apr 11, 2014 | Divorce |

Nebraska, like Texas and some other states, is caught up in the conflict that is rearing its head regarding same-sex married couples. The problem is that same-sex marriages are legal in some states and not in others. States that don’t recognize same-sex marriages refuse to allow divorces for couples if they don’t recognize the marriage as being legal.

That’s the state’s side of the argument. The couple’s argument is that they just want a divorce like any couple of the opposite sex is entitled to. They want “equal rights.”

In this particular case, an Iowa couple married in 2009. A woman married her same-sex partner, with whom she had been living for more than a decade. In 1996, they had a civil union performed. They also had a child, who joined their family in 2003.

Their marriage in 2009 was performed in Iowa, which recognizes same-sex marriages. Now, the couple lives separately in Nebraska and wants the state of Nebraska to allow them to divorce. A Nebraska judge denied their petition, stating that finding the marriage as irretrievably broken cannot be done unless she first recognizes the marriage.

In 2000, Nebraska voters overwhelmingly passed the Defense of Marriage Act, which defines marriage as being between a man and woman. The attorney general for Nebraska argues that “divorce isn’t a right.” He supports upholding the judge’s ruling.

You may think that the simple answer to the couple’s problem would be to return to Iowa, get a divorce and then come back to Nebraska. However, most states require that you reside in the state for at least a year before they will grant a divorce. This would apparently require the couple to move back to Iowa for at least a year.

In the meantime, the couple must remain married, which not only precludes them from remarrying should they chose to do so but could affect other ties they have, such as financial responsibilities. This case now resides with the state Court of Appeals, but has been petitioned to go to the state Supreme Court. Nebraska attorneys will remain abreast of these issues as they move forward through the courts.

Source: Lincoln Journal Star, “Same-sex couple asks Nebraska court to allow divorce” Nicholas Bergin, Mar. 28, 2014