Several states now recognize marriages between same sex couples as valid. Those states clearly have jurisdiction to grant a divorce to same sex couples married in the state. The question arises, however, whether a same sex couple legally married in one state, can be granted a divorce in a state which does not recognize those marriages as valid.
A Hancock, County, Ohio court recently considered the issue. The same sex couple was legally married in New York State and moved to Ohio. They established residency required for the granting of a divorce. Ohio does not yet recognize same sex marriages as valid. In fact, the Ohio Constitution contains what is commonly referred to as the “Marriage Amendment.” That amendment provides that only a union between a man and a woman may be recognized as a valid marriage. Same sex relationships, under the amendment do not create a legal status. The amendment would seem to preclude the granting of a divorce to same sex couples.
The Hancock County court, however, granted the couple a divorce. It reasoned that the equal protection clause of the United State Constitution requires states to give full faith and credit to valid orders of other states. A marriage valid under the laws of one state should be given that status in any other state. Accordingly, a state court would have jurisdiction to grant the same sex couple a divorce.
Ohio courts have not all adopted the Hancock County courts reasoning. A Franklin County court previously held that it did not have jurisdiction to grant a divorce to a same sex couple legally married in Canada.
When a very basic question of jurisdiction exists among the various appellate districts in Ohio, the issue is usually resolved either by the Supreme Court or through the legislative process. To date, to the best of my knowledge, neither the Supreme Court, nor the Legislature has addressed the issue. Ohio and other states, will eventually have to adopt uniform laws with respect to the granting of divorces to same sex couples who's marriages were validly solemnized in other states.