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Same-Sex Divorce Challenges the Legal System

In Massachusetts, a child born into a heterosexual marriage is a child of the marriage, regardless of whether both spouses are the biological or legal parents.

That is not necessarily the case for same-sex couples.

Kauffman represented a woman who unsuccessfully sued her departing spouse for child support. Since the spouse was not the biological parent, she had no legal obligation to the child, whom she had not co-adopted. "A lot of couples ran out to get married when they should have run out to co-adopt," Kauffman said. "I tell all my clients: 'Adopt, adopt, adopt. It is the only way to protect your child.' "

In 1996, Congress passed, and President Bill Clinton signed, the Defense of Marriage Act, which says that no state is required to recognize a same-sex marriage that occurred in another state. States that do not recognize those marriages "would probably not divorce a same-sex couple from Massachusetts," said a 2004 handbook on marriage produced by the Massachusetts Lesbian and Gay Bar Association.

Under Massachusetts law, both people seeking a divorce must reside in the state. That left Cassandra Ormiston and Margaret Chambers of Rhode Island in a bind. The two were wed in Massachusetts in 2004, soon after the state legalized same-sex marriages. But in 2006, they filed for divorce in their home state, where the law is silent on whether such marriages are legal.

The divorce issue then fell to the Rhode Island Supreme Court, which ruled in December that the state's family court lacks the authority to grant a divorce for same-sex couples because the state legislature has not defined marriage as anything other than a union between a man and a woman.

"There is now no way for me to get divorced unless I move back to Massachusetts, establish residency and then wait a year before I file, and I simply will not do that," a bitter Ormiston said after the ruling.

Andrew Koppelman, a law professor at Northwestern University, published a book in 2006, "Same Sex, Different States: When Same-Sex Marriages Cross State Lines." Koppelman urged states that oppose same-sex marriage to agree at least to perform divorces. "You have to have a way for people to get out of these things -- otherwise, you have multiple claims on the same property and no protections for people entering into new marriages. I think states that try to adopt these rules refusing to recognize the marriages just haven't thought it through."

Staff researcher Julie Tate contributed to this report.

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