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Divorce and Same-Sex Couples in Mississippi

On June 26, 2015, the United States Supreme Court, in the landmark case of Obergefell v. Hodges, decided that same-sex couples are entitled to the same rights and responsibilites of marriage as opposite-sex couples.  This decision not only gave same-sex couples the right to marry in Mississippi, it made their marriages performed in other states valid in Mississippi.  Many states have been allowing same-sex marriage for years.  Those marriages are now valid and recognized in every state, including Mississippi.  Not only that, but these marriages are valid from the date of the original marriage performed in another state.  

Mississippi's refusal to acknowledge the validity of same-sex marriages for years has created a bit of difficulty.  As Mississippi did not recognize these marriages for years, couples found themselves unable to divorce.  They are now free to divorce. Being unable to divorce means that marital property could not be divided and must now be divided. Children have been left in limbo.   

Some couples find themselves in a unique situation.  Unable to divorce a same-sex partner, some have left the relationship and married an opposite-sex partner.  These people now find themselves married to two people.  These marriages to the opposite-sex partner are now voidable and bigamous.   

 Many couples are entering into amicable and uncontested divorces.  They have waited years for the legal right to be able to move on from a bad marriage- a right that opposite-sex couples have long taken for granted.  

Some couples will want to file contested divorces as a spouse, unable to divorce, has entered into an adulterous relationship.  These couples, under the rulings in Campaign for Southern Equality v Bryant and Obergefell v. Hodges, are entitled to the same rights, responsibilites, and protections regarding marriage that every opposite-sex couple has and has always had.  

The Court in CSE v Bryant was very clear in its ruling, holding that the Court reached the "inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage."  The Court continued, holding that "[t]The court concludes that Mississippi's same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi's same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment." Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 913 (S.D. Miss. 2014) aff'd, 791 F.3d 625 (5th Cir. 2015).  

The Court continued, finding that "[t]his court joins the vast majority of federal courts to conclude that same-sex couples and the children they raise are equal before the law. The State of Mississippi cannot deny them the marriage rights and responsibilities it holds out to opposite-sex couples and their children." Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 954 (S.D. Miss. 2014) aff'd, No. 14-60837, 2015 WL 4032186 (5th Cir. July 1, 2015). 

The United States Supreme Court, in the case of Obergefell, found that "[t]he state laws challenged by the petitioners are invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." Obergefell v. Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015).  

I have recently been told that some attorneys are telling same-sex couples that they are not entitled to be granted a divorce on the grounds of adultery, assuming that the adultery also occurs with a person of the same gender as the couple.  There is no basis in law for this assertion.  It is beyond clear that the courts of the Southern District of Mississippi, the Fifth Circuit Court of Appeals, and the United States Supreme Court have unequivocally determined that same-sex couples are entitled to every right, responsibility, remedy, and protection of the law when it comes to their marriages.  This includes the right to a divorce when your spouse is unfaithful.  

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