Conflicts of Law

Broadly speaking, every state in the nation will recognize marriages, prenuptial agreements, and divorces finalized in other states. The same is true for court orders in divorce proceedings on issues such as spousal support, child custody, and child support. Like marriages and divorces, these orders are covered by the Full Faith and Credit Clause of the U.S. Constitution.

Recognition of same-sex marriages is not always straightforward. Any state where same-sex marriage is legal will recognize a valid same-sex marriage performed in any other state. On the other hand, most states that do not permit same-sex couples to marry will not recognize out-of-state same-sex marriages, even if they are validly performed in a state where they are legal. This means that same-sex married couples who move to a state that does not recognize same-sex marriages probably will not be able to access the benefits to which married people are entitled in that state. For example, the couple would not be eligible for state tax benefits or health care benefits.

Many federal agencies will recognize a same-sex marriage wherever a couple lives, however, so they can continue to get federal tax benefits and child tax credits. Other federal agencies, such as the Social Security Administration, will not recognize a marriage that is not recognized by the state where the couple lives. These rules are constantly changing and may become more consistent with time, so same-sex married couples should make sure to stay up to date as their rights expand.

In the context of family law, clashes between the laws of different states most often arise when a court tries to divide marital property located in another state upon the divorce of a couple.

Choosing Laws in Property Division

In most cases, a court will apply the law of the state in which it is located when classifying, valuing, and distributing marital property between divorcing spouses. This rule does not apply, however, when spouses acquire property in a state that uses community property rules while they are living in that state. Most states use equitable distribution rules rather than community property rules to divide property, but California and Texas are the most populous among a handful of states that follow the community property system.

If a couple buys a house and a car in Los Angeles while living in California, for example, a court in New York usually will apply the law of California when dividing this property if the couple eventually ends their marriage. This is based on a traditional rule of how ownership is determined. Ownership of real estate is determined under the law of the state where it is located, while ownership of personal property is determined under the law of the state where a person lives when he or she acquires it.

If a couple buys a house and a car in an equitable distribution state like Massachusetts, by contrast, a court in New York will apply the law of New York when classifying, valuing, and distributing this property. This is because a court will be most familiar with the law of its own state and thus is most likely to reach an accurate result by applying it. A few states do not follow this rule, but you generally can expect that property in an equitable distribution state will be divided according to the law of the state where you seek divorce.

Since this area is especially murky and unpredictable, you may want to consider asking a knowledgeable family law attorney how the rules of property division would be applied in your specific situation.