Trapped in Marriage: Potential Pitfalls of Same-Sex Marriages in Non-Recognition States

Laura E. Vocke and Katie Burke, Schoenberg Family Law Group, P.C.

When they decided to end their marriage, Mississippi residents Lauren Beth Czekala-Chatham and Dana Ann Melancon faced an unusual hurdle: the court refused to grant them a divorce.

The couple had traveled to California to marry in 2008. In June 2010, Czekala-Chatham filed for divorce in their home state of Mississippi, which bans same-sex marriages both by statute [1] and state constitution.[2] The trial court refused to divorce the couple because, under Mississippi law, no marriage exists.

In our increasingly mobile society, where interstate travel is common, same sex couples face legal complexities similar to those demonstrated by this case. Fifteen states and Washington D.C. have legalized same-sex marriage. California is one of those fifteen states, and in June 2014, Illinois will become the sixteenth.[3] Unlike heterosexual couples, same sex couples who marry in California and reside elsewhere may endure potential pitfalls under marriage evasion statutes, including the inability to divorce in their states of residence, or even criminal penalties.

The Defense Against Marriage Act (“DOMA”) restricted same-sex marriages in two ways. Section Three of DOMA restricted the federal government’s recognition of same-sex marriages. Section Two curtailed the authority of non-recognition states to recognize their residents’ same-sex marriages that are legal in other states.

U.S v. Windsor, decided by the U.S. Supreme Court, is the landmark case on DOMA’s Section Three. This case held this section unconstitutional, thus barring the exclusion of same sex married couples from federal recognition and benefits.[4] The case did not address Section Two, which allows states to refuse recognition of their residents’ same-sex marriages that are legal in other states. As a result, same sex couples continue to navigate a murky medley of state laws regarding their marriages.

As Czekala-Chatham and Melancon experienced, non-recognition states may refuse to divorce same sex couples who legally married in California.[5] In response, California has enacted legislation allowing same sex couples married in California to divorce here, if neither party lives in a state that will dissolve the marriage.[6] Normally, California requires that at least one of the parties to a divorce reside in California for at least six months before it will enter a divorce judgment.[7] But this recent legislation permits California courts to enter a divorce judgment for same sex couples, even if neither spouse resides in California at the date of entry of judgment.

Other non-recognition states, including Wisconsin[8] and Delaware,[9] have gone even further, making it a crime for a resident same sex couple to marry in another state to circumvent their home state’s marriage laws. Notably, a same sex couple who travels to another state to marry, in violation of Wisconsin’s marriage evasion laws, may be fined up to $10,000 or imprisoned up to nine months, or both.

Some may argue that Mississippi’s law does not impede Czekala-Chatham and Melancon’s divorce, since they could divorce in California, the state where they were married. But Czekala-Chatham maintains that she is entitled to divorce in her home state, just as heterosexual couples are.

If Czekala-Chatham succeeds in securing a Mississippi dissolution of a California marriage, this could ultimately encourage other non-recognition states to recognize their residents’ out-of-state, same-sex marriages for divorce purposes. Also, these states could eventually expand the purposes for which they will recognize their residents’ out-of-state, same-sex marriages; for example, they might grant in-state marital benefits to their residents who legally married in other states.

Disclaimer: The purpose of this article is to share general information relevant to California law. The article and the information provided herein do not create an attorney-client relationship or any other professional relationship, do not constitute legal advice, and should not be used as a substitute for the counsel and services of a licensed attorney.

About the authors:

Katie-BurkeKatie Burke has practiced family law for ten years. She joined Schoenberg Family Law Group, P.C. in 2012, and belongs to the Bar Association of San Francisco’s Family Law Section and the Queen’s Bench Domestic Violence Committee. Katie occasionally writes family law articles for Nolo and Trial Insider.


Laura-Vocke-smLaura E. Vocke is an associate attorney at Schoenberg Family Law Group, P.C., practicing exclusively family law. She currently serves as co-chair on the Queen’s Bench Domestic Violence Committee and is a member of the 2014 Queen’s Bench Board of Directors.

She received her Juris Doctorate from the University of San Francisco School of Law, where she received a CALI award for outstanding performance in community property law. She completed her undergraduate degree in literature from University of California, Santa Cruz with highest honors in her major.

Ms. Vocke chose to practice family law because she finds personal satisfaction in assisting her clients through an extremely difficult period of their lives.

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[1] Mississippi Code Section 93-1-1

[2] Mississippi Constitution Article 14 Section 263A

[3] Marriage, Domestic Partnerships and Civil Unions: Same Sex Couples Within the United States, National Center for Lesbian Rights, November 2013

[4] United States v. Windsor, 133 S. Ct. 2675 (2013)

[5] See Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007) (holding that “plain meaning” of “marriage” at time law creating the court passed indicates “Family Court is without jurisdiction to entertain” petition for divorce).

[6] California  Family Code Section 2320(b)

[7] California Family Code Section 2320(a)

[8] Wis. Const. art. XIII, § 13

[9] Del. Code Ann. tit. 13, § 101(a), §102