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Archive for Saturday, June 14, 2014

Douglas County courts are sole source for same-sex divorce in Kansas

June 14, 2014, 10:55 p.m. Updated June 14, 2014, 10:55 p.m.

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In recent years, many same-sex couples in Kansas have traveled to Iowa to get married. That's because Iowa is one of 17 states where same-sex marriages can be legally performed.

But when those marriages don't work out, getting a divorce can be much more difficult, especially in Kansas, which not only doesn't allow same-sex marriages, but officially doesn't even recognize that such marriages performed in other states legally existed in the first place.

In fact, according to gay rights advocates, there is no consistent pattern among Kansas courts about how to handle same-sex divorces, and currently Douglas County is the only judicial district where judges have been willing to grant them.

"I don't know of any other jurisdictions that will grant a divorce to a same-sex couple," said Thomas Witt, director of the Wichita-based Kansas Equality Coalition. "The only one I know of specifically is Douglas County."

The most recent case in Douglas County occurred June 2, when Lisa Goans and Marian Dawson were granted a divorce. They had been married two years earlier in Adair County, Iowa, about 50 miles west of Des Moines.

Divorce harder than marriage

David Brown, the Lawrence attorney who handled that case, said it's a common problem for same-sex couples in Kansas whose marriages don't work out. He said Iowa is a popular place for couples to get married because the state has no residency requirement to get a marriage license. But it does require people to be residents for at least one year before they petition a state court for a divorce.

"These folks have never been residents of Iowa and they have no intention of moving there to become residents," he said. "If Kansas refuses to recognize the marriage and not grant a divorce, they are out of luck. They have no legal remedy."

Brown, whose law practice focuses on LGBT legal issues, said the Goans-Dawson divorce was only the third same-sex divorce that has been granted anywhere in Kansas and that so far Douglas County has the only district court he knows of that will grant them.

"There are three different approaches to same-sex divorce in Kansas," Brown said. "The first is, the court finds the marriage is invalid, so the court won't even address the case and dismisses it. I think that is the majority approach among counties in the state."

In at least two other counties, Shawnee and Johnson, Brown said courts will grant an annulment, which is basically a declaration that the marriage was fraudulent to begin with and therefore never legally existed.

But while an annulment may help couples get out of a marriage, Brown said, it is not always a solution because it raises a host of other legal issues.

"Technically speaking, an annulment cancels a marriage so that legally speaking it's as though it never happened," Brown said. "Divorce is terminating a marriage."

"The difficulty is — and the unanswered question is — will Iowa accept the annulment decree?" he said. "Iowa will take the position that the marriage is valid. Therefore, Kansas cannot unilaterally overturn the laws of Iowa, so the annulment is invalid in Iowa. It leaves folks who get an annulment in Kansas with the unanswered question about how any other jurisdiction — Iowa or the federal government — will recognize the annulment."

And that, Brown said, could interfere with the ability of either party ever to get married again to someone else.

Political and constitutional questions

Few political leaders in Kansas were willing to speak on the record about the issue of same-sex divorce, although one, state Sen. Clark Shultz, R-Lindsborg, who serves on the Federal and State Affairs Committee, said it's an issue that likely will have to be addressed by the Legislature.

Rep. Paul Davis, D-Lawrence, who is running for governor, declined to comment on the issue. And the office of Republican Gov. Sam Brownback did not immediately respond to a request for comment.

Lisa Taylor, spokeswoman for the state's Office of Judicial Administration, said there are no policies or guidelines about same-sex divorces in Kansas because it's a legal issue that has never been presented to an appellate court.

Rick Levy, a constitutional law professor at Kansas University, said the issue of divorce is one of many issues related to same-sex marriage that still haven't been resolved by the U.S. Supreme Court.

"This is an issue that has rattled around," Levy said. "There are some cases in other states that have declined to consider divorces because of their state's marriage protection (constitutional) amendments. So they've said you cannot grant a divorce because we don't recognize the marriage."

Kansas voters approved such an amendment in 2005. It defines marriage as a civil contract between one man and one woman, and that "All other marriages are declared to be contrary to the public policy of this state and are void."

"On the other hand," Levy said, "there's this pesky provision of the U.S. Constitution called the full faith and credit clause that would require Kansas to recognize marriages that are effective in other states."

Levy noted that the Supreme Court last year struck down one part of the federal Defense of Marriage Act that prohibited the federal government from recognizing same-sex marriages performed in states where they are legal.

But he said the court did not address another provision of that law that gives states like Kansas the authority not to recognize same-sex marriages from other states.

Witt, of the Kansas Equality Coalition, said the issue of divorce is another reason why he believes the marriage ban should be eliminated.

"There are a lot of married people in Kansas, and sometimes they need to get a divorce," Witt said. "For the state to raise roadblocks for resolving differences in our own marriages, it just needs to come to an end. The marriage ban needs to be repealed."

Comments

Fred Whitehead Jr. 2 months, 2 weeks ago

As the Koch brothers die off and their heirs continue to inflict their bigotry and hatred on Kansas, gradually, Kansas will eventually get in line with the sane world and universal marriage (changed from the incendiary term "gay" in this case) will become a right in "Bleeding Kansas".

Kansas will become the 53rd state to allow this civil rights issue.(after the states of Puerto Rico, Bangladesh, and Canada). All the religious bigots, gay bashers, and malcontents will have died off and the citizens of this country can truly have civil rights in line with the human condition not regulated by the foolish and hateful notions of ignorant people who currently populate areas of the state.

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