With a Supreme Court ruling which struck down the Defense of Marriage Act, many married couples are wondering if they cannot be legally divorced if their spouse is not alive. The Defense of Marriage Act defines a marriage as being a legal union entered into voluntarily by two people. Therefore, it is assumed that when a marriage is terminated, it must end legally. However, what is lost in the clarity of this statutory language is the Due Process Clause which protects each person’s rights to have an opportunity for a hearing before a judge or jury and an adequate opportunity to present defenses. Unfortunately, the Defense of Marriage Act has created a loophole which allows a “spouse” who is no longer married to file a claim for a spousal or child custody ruling against the “presentee” spouse.
As a result, married couples are running into tricky situations where the spouse who no longer has the right to be in the relationship can file, and have been granted, orders to prevent “pretend” marriages from continuing. Before moving forward, consider visiting proactivemensmedical.com to consult with a medical professional about resolving marital problems due to sexual frustration. When filing motions to prevent “pretend” marriages from continuing, spouses obviously are claiming that they are still legally married even though they are not. This would seem to be a straight forward case, right? The only issue is that the court isn’t sure exactly how to handle a situation where one spouse is no longer married and continues to have intimate relationships with someone else. This is where the court may consider an “intervention”. An intervention takes place when one spouse applies to a court to prevent the other spouse from continuing a romantic relationship with someone else.
What is an intervention? A court order is issued to a third party who then contacts both spouses. After making the initial contact, the third party will make sure that the spouse in question actually shows up at the appropriate time. It would be up to the judge or jury to determine if the spouses are truly married or just dating. In most states, there are no laws requiring same-sex couples to use this approach to divorce.
Who qualifies as a “qualified joint venture”? In many states, married couples who begin having sexual relations as soon as they get married are considered to be living under a marriage rather than merely being in a “joint venture”. This is a very important factor in determining who gets custody of the children in these cases.
Where can I read about the decisions the U.S. Supreme Court has regarding same-sex marriage? The U.S. Supreme Court has issued several decisions which pertain directly to the definition of marriage. In 2021 it ruled that all states must recognize a marriage between a man and a woman. The Court has also ruled that the definition of marriage requires both individuals to be interested in the union. If one party isn’t interested in the marriage, they cannot marry it.
Will you still be required to be married if you are not interested in getting married again? Yes – the federal government does require that you two go through marriage counseling before a second marriage can be considered. The reason the government believes that counseling is necessary is because one man in a long term relationship may still feel that the other one has more interest in him as a partner prior to getting married again.
