Is it possible for a couple who has been legally married or subject to a legal civil union to obtain a civil union divorce in Indiana?
Probably not, at least as the law stands in development today.
Under the present state of Indiana law, only a female may marry a male. Conversely, only a male may marry a female. Under the provisions of who may marry, the law declares that a marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the state where it is observed.
Because of the requirement that parties who marry must not be of the same sex, the laws that govern the dissolution of marriage and legal separation (the “Dissolution Act”) appears inapplicable to same gender marriages or civil unions that are legally conducted and recognized in other states. In other words, on its face, civil union divorce or domestic partnership dissolution appears to be a relief unavailable in Indiana because same-sex unions or marriages are not lawful. (As a policy matter, however, an Indiana court may provide the narrow relief of at least severing the union).
Because same gender couples who are legally married in another state cannot obtain a divorce in Indiana, they may be forced to seek a domestic partnership dissolution or civil union divorce in the state where the marriage occurred. However, if the parties live in Indiana, according to court rules of procedure, it is unlikely they will be allowed to file a lawsuit seeking relief in a court of another state because they do not live in that state (the parties “lack standing” because they are not “residents” of that state). Simply put, each state has “residency requirements” that require any party to a lawsuit to live within the state for a certain period of time before asking the courts to provide relief or remedy to a problem.
As previously mentioned, because of the requirement for marriage that parties be of the opposite sex and the Indiana trial rules, it appears that a filing for a domestic partnership dissolution or civil union divorce would be dismissed by the court for “failure to state a claim upon which relief may be granted.” In other words, same sex marriage is void in Indiana, so the parties technically have no legal basis for seeking help from the court. As the divorce law is presently written, it is not possible for same sex marriages (that are legal in other states) to “divorce” in Indiana. However, despite the seeming inability for same gender married couples to obtain a divorce, Indiana trial courts have still managed to address the division of property between same-sex couples and third-party custody, which indicates that some relief may be available
For example, it is conceivable and arguable that a trial court could choose not to dismiss the case, but rather chose to provide some fair and equal relief for the parties and call it a domestic partnership dissolution instead of a divorce. The court could provide such relief pursuant to the United States and Indiana Constitutional provisions that guarantee citizens the right to have access to the courts and equal protection. This is an unanswered question of law.
To explain further the argument, under the Full Faith and Credit Clause of the United States Constitution, all states are supposed to recognize and respect the “public acts, records, and judicial proceedings of every other state.” Therefore, the public act of civil union or same-sex marriage in another state – as the argument would go – should be recognized in Indiana and a remedy provided by Indiana courts to effectuate a divorce.
Nevertheless, as the law reads today, any person who wants a lawful domestic partnership divorce or civil union dissolution appears to be unable to obtain one in Indiana.
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