Boone County Judge Enters Missouri’s First Same Sex Divorce (sort of)

On behalf of The Marks Law Firm, L.L.C. posted in Same Sex Marriage, Divorce, and Annulment on Tuesday, May 13, 2014

Dena Latimer and Natalie Latimer were legally married in 2009 in the State of Massachusetts, which recognizes same sex marriages.  The parties relocated to the State of Missouri and resided in Columbia, Missouri.  In 2012, the parties separated and on February 25, 2013, Dena filed for an annulment or, in the alternative, a declaratory judgment for “divorce.”

Historically, when same sex couples legally married in another state have sought a divorce in Missouri, the Missouri courts have treated the marriage as “void” and therefore subject to annulment.  Of course, the significant problem with an annulment is that it considers the marriage non-existent and therefore not subject to laws regarding division of property and ordering marital support.  For same sex couples that did not want to relocate in order to meet the residency requirements of another state that would recognize their marriage as valid, an annulment would be the only remaining option.

Judge Leslie Schneider, the circuit court judge in Boone County assigned to hear the Latimers’ case, dismissed the petition for annulment, finding that she could not consider “void” a marriage lawfully entered by the State of Massachusetts.  She elected to proceed on the petition for declaratory relief.

It seems that the attorneys representing Dena Latimer chose not to attack Missouri’s definition of marriage as unconstitutional under the Supreme Court’s recent ruling in Windsor.  By filing a petition for dissolution of marriage, Latimer could have forced the Missouri courts to confront directly the corollary to Windsor – that another provision of the Defense of Marriage Act that prohibits states from recognizing, under the Full Faith and Credit Clause, same sex marriages lawfully entered in another state.  By not choosing this route, Latimer left Judge Schneider with little legal wiggle room to grant acceptable relief.

But Judge Schneider found such wiggle room in the doctrine of comity, an equitable remedy that allows a court to respect the acts of a sister state separate from the Full Faith and Credit Clause.  Judge Schneider, using this doctrine, granted Latimer declaratory relief that (a) voided the marriage of the parties and (b) granted Dena Latimer sole ownership in the marital home.

Some individuals reporting or commenting on this story consider this declaratory judgment the first same-sex divorce in Missouri.  However, that misstates what Judge Schneider did in her ruling.  Because Judge Schneider voided the marriage (even though she also used the word “dissolved”), it appears she did not grant a divorce but the equivalent of an annulment.  Second, she chose to grant equitable relief regarding the marital home through a declaratory judgment action, which may be outside the scope of relief in a declaratory judgment.  Dena Mortimer could have maintained an independent action with regard to the property rather than seek a declaratory judgment, but presumably wanted a ruling closer to a divorce than the traditional annulment remedy.

So, Missouri still awaits its first true same-sex divorce – and several Missouri courts currently are considering challenges to the limitation of divorce to heterosexual couples, so it seems only a matter of time before Missouri will have no choice but to allow lawfully married same-sex partners to dissolve their marriage in Missouri under the Uniform Dissolution of Marriage Act, something several other states have already done following Windsor.

If you have questions about same sex divorce in Missouri, contact us – we can help.

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