Same-Sex Divorces in Alabama

On January 23, 2015 the U.S. District Court, Southern District of Alabama, in the case of Searcy v. Strange, struck down the Alabama Marriage Protection Act and the Sanctity of Marriage Amendment, declaring that they violated the U.S. Constitution due process and equal protection clauses.  The federal judge issued a stay on the ruling going into effect for two weeks, with the temporary delay ending on Monday, February 9, 2015.  The 11th Circuit Court of Appeals refused to extend this stay and the U.S. Supreme Court is not going to rule before Monday morning on the request by certain Alabama lawyers to block the marriages.  Therefore, the federal ruling would seem to be the law, striking down the Alabama laws as unconstitutional.  Of course, the U.S. Supreme Court is going to decide this issue for all of the states later this year, but in the meantime Alabama will become the 37th state to allow same sex marriage.  Next week, many probate judges across the State of Alabama will be issuing marriage licenses to same-sex couples since the federal ruling will go into effect on Monday morning.

But does this mean that same sex couples can get divorced in Alabama starting next week?  As long as the Circuit Courts abide by the federal ruling, then yes.  However, just as certain probate judges across Alabama have said that they will not abide by the federal ruling and are not going to issue marriage licenses, there may be similar issues arise concerning Circuit Court judges issuing same sex divorce decrees.  For example, the Washington County Probate Judge has issued a statement saying that he “will continue to abide by his oath of office as supported by his constituents and guided by the Alabama Supreme Court, and will only issue marriage licenses and solemnize ceremonies consistent with Alabama law and the U.S. Constitution; namely, between one man and one woman only, so help me God.”  The Covington County Probate Judge issued a statement that he will not issue licenses to same-sex couples because he does not believe that the federal ruling requires him to do so.

In March 2014, an uncontested divorce was filed by a same sex couple in Madison County and the Madison County Circuit Court Judge issued a one sentence order dismissing the divorce petition since it didn’t contain claims where relief may be granted pursuant to the laws of Alabama.  Since same sex marriage was not recognized according to the laws of Alabama, there were no claims for relief since there was no recognized marriage to be divorced.  However, with the federal ruling it would seem that now such marriages may be recognized in Alabama and that an uncontested divorce filed on or after Monday, February 9, 2015 would be granted.  It is possible that certain judges could have similar responses to same sex divorce filings that some Probate Judges have had to issuing marriage licenses, but it would seem that in counties like Jefferson County, where the Probate Judge has stated they will issue marriage licenses, that they would be likely to issue divorce decrees in same sex divorce filings as well.  However, each individual judge in each individual county may react differently to same sex divorce filings in their jurisdiction, and until they are filed next week we may not know how all of the judges will respond.

UPDATE ON MARCH 5, 2015: Subsequent to this blog post, the various courts have taken several actions.  Initially, some probate judges were issuing licenses and others were not, resulting in an action brought by a same sex couple in Mobile County that ended up in front of the Federal District Court where the Judge that issued the initial decision on January 23, 2015 (Judge Granade) issued a ruling ordering them to issue such licenses.  After this, the Alabama Supreme Court ordered a halt to all licenses in Alabama being issued to same sex couples on March 3, 2015.  This creates a situation where the Federal District Court Judge Granade has ordered one thing and the Alabama Supreme Court orders something contrary to this.  It is generally believed that Federal law trumps State laws, so the refusal to follow the Federal Court is quite unusual.  However, the situation is still such that probate judges can decide to follow their State Supreme Court or the Federal District Court, with most seemingly deciding to follow the Alabama Supreme Court until the U.S. Supreme Court ultimately decides all of this later this year.  So, currently it seems that most probate judges will not be issuing marriage licenses until the U.S. Supreme Court gives them some more specific direction on this issue.  This would suggest that although judges may be able to recognize same sex marriage and grant same sex divorces if they wish to follow the Federal District Court’s ruling, many of them will likely not do so at this time and follow the Alabama Supreme Court, since the U.S. Supreme Court will be deciding the issue in the near future.  This is all quite confusing, but ultimately it seems that Alabama Courts have taken a wait and see approach, letting the final decision ultimately rest with the highest court in the country.  It is extremely unlikely that Alabama will refuse to follow any U.S. Supreme Court decision, so the issue should be decided in a few months either way.  Until then, it would seem that anyone filing a same sex divorce in Alabama is filing at their own peril, with no clarity ahead of time, and no way to be sure if they will get their divorce decree granted or not.

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