As most people know, the California Supreme Court recently ruled that the state’s ban on same-sex marriage was unconstitutional. So what does that mean for Missourians?
- In California, there were two statutes that said that a marriage is between a man and a woman, which was interpreted to prohibit same sex marriage. The Supreme Court ruled those statutes to be unconstitutional under the California Constitution (not the federal). It is now legal for same sex couples to marry in California.
- Missouri is different. In Missouri, rather than a statutory ban on same-sex marriage, we have a constitutional amendment (2004) that defines marriage as being only between a man and a woman, and marriages between same-sex couples are not recognized. There is also a federal statute in play called the Federal Defense of Marriage Act which permits Missouri (and other states) to deny full faith and credit to the marriage laws of another state. This means that Missouri does not have to recognize a same-sex marriage that is perfectly legal in California since it is inconsistent with Missouri law. The federal law’s constitutionality has not been fully challenged yet.
- Taken together, it is presumed that if a same sex married couple moved to Missouri, or Missourians went to California to get married and returned to Missouri, their marriage would not be recognized.
- This also means that same-sex married couples could not obtain a divorce in Missouri because there would be no jurisdiction for the courts. Thus, dissolution of marriage laws that control child custody, visitation, support, maintenance, and property division would presumably not apply.
- In the event of a separation the couple would probably have to file an action under the Uniform Parentage Act (commonly known as a paternity action currently) to determine custody, visitation, and child support issues if adopted children are involved.
- Same sex couples may want to utilize prenuptial agreements, antenuptial agreements, contracts, and other documentation to control the disposition of assets, including real estate, personal property, bank accounts, securities, business interests, etc.
Source for Post: mobar.org Esq. soundbite.