Dissolving A Same-sex Marriage In Arizona

Arizona’s Constitution, Article 30, Section 1 and Arizona Revised Statute, section 25-101(C) prohibit marriages between persons of the same sex.  However, other states and countries have adopted laws allowing for same sex marriage.  When persons enter into a legal same sex marriage in a jurisdiction that allows them, and subsequently relocate to Arizona and seek to divorce, the Courts are left to decide how to dissolve the marriage while facing the quandary that it is not a recognized marriage under current Arizona law.  Arizona retains jurisdiction over the matter so long as the parties have resided in Arizona for the 90 days prior to filing.

The Arizona Court of Appeals recently sought to solve this problem by ordering that the marriage may be dissolved through an “Annulment”. Surnamer v. Ellstrom, 2012 WL 2864412 (This is an unpublished opinion and does not set legal precedent).  The decision is based on the premise that the granting of an annulment is not a recognition of the validity of the marriage, but rather that the marriage is void or voidable. Arizona Revised Statute, section 25-301 allows the Arizona Court to “adjudge a marriage to be null and void when the cause alleged constitutes an impediment rendering the marriage void.”

While not a divorce, an annulment functions in the same manner.  The property and debt must be divided equitably and if their are children involved, a custody and parenting time order must be entered. (Arizona Revised Statute, section 25-302)  Essentially the parties end up as they would in a divorce.

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