Same-sex marriage in Indiana opens door to divorce, too

Before Oct. 6, same-sex couples who were married in other states but sought to get divorced in Indiana were stuck.

Indianapolis family law attorney Kathy Harmon said a handful of those couples had contacted her office, asking what they could do to get divorced. The answer then wasn't so simple. Harmon recommended what's called a partition action or division of assets.

"But I can't get you divorced, so that you can go get remarried," Harmon told them.

That's no longer the case.

Now that same-sex marriages are recognized by the state, couples who were married elsewhere and are seeking to get divorced in Indiana can do so just as any opposite-sex couples seeking to part ways.

"There's no difference in that regard now," Harmon said. "Since we are now treating these marriages as we treat opposite-sex marriages, their divorces will be treated the same as well."

However, that doesn't mean same-sex divorce cases will be free of complications.

Harmon said many same-sex couples who couldn't get married in Indiana but have been living together through a cohabitation agreement could face some complications if they decide to split up. A cohabitation agreement is made so that couples — heterosexual and homosexual — who aren't married can determine who gets to keep which properties if they do separate.

"We have a lot of couples that would come to us and say, 'We'll wait until we can get married in Indiana,' " Harmon said. "They live together. They won't do a ceremony anywhere else. Now, if they get married in Indiana, and they get divorced, what happens to that cohabitation agreement? Is that agreement still valid? What happens to their properties?"

Those are questions the courts will need to answer. One option, Harmon said, is to treat the cohabitation agreement like a prenuptial agreement.

A complication also could arise if one partner had a child through adoption or artificial insemination, and the other partner didn't do a second-parent adoption. If a couple in this situation decides to get divorced, the non-adoptive parent would have no rights to the child, even though the marriage was legal in Indiana, Harmon said.

However, if the non-adoptive parent is the primary custodian or caretaker of the child, he or she can argue that he or she should have custody, Harmon said.

At least two same-sex divorce cases are pending in Marion County.

Indianapolis attorney Richard Mann represents a woman whose petition for divorce from her wife was denied last June by a Marion Superior Court judge. The decision was appealed, and the Indiana Court of Appeals sent the case back to Superior Court for a hearing scheduled next month.

Another case involves a same-sex couple who married in Maryland but have been looking to get divorced.

"Some people want to get married and some people want to get divorced," Indianapolis attorney Clayton Morgan, who represents one of the parties, said. "Now everybody has the freedom to do what they want."

Micah Clark, executive director of the American Family Association of Indiana, said he's not surprised at the filings of same-sex divorce cases.

"Simply saying that the government is approving something doesn't make it more stable," he said.

Same-sex marriage became legal in Indiana on Oct. 6, when the U.S. Supreme Court decided to let stand two federal court rulings that said the state's law banning same-sex marriages in Indiana and refusing to recognize such marriages performed elsewhere was unconstitutional.

Star reporter Justin Mack contributed to this story. Contact Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.