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Same-sex divorce filings challenge Indiana's ban

Michael Alan Wetli wants a divorce.

But under Indiana law, it will be very difficult for him to get one. While his same-sex marriage to his estranged spouse, Matthew Eugene Shaffer, is legal in Iowa, the Hoosier State does not recognize such unions.

So it is unclear whether Allen Circuit Judge Tom Felts or one of his magistrates will, or even could, grant Wetli's request, filed March 7.

While his attorney, Harry W. Foster III, is optimistic, some legal experts believe it is not likely to succeed and there are few if any other such cases in Indiana with which to compare.

A simple request

According to court documents, Wetli and Shaffer were married in Iowa on Jan. 1, 2013. But in August, the couple separated. Wetli has been living in Indiana for about six months, and for at least the last three months, has been a resident of Allen County.

"(T)he petitioner is requesting that the Court dissolve the marriage," Foster wrote in court documents on behalf of his client. "(W)hile Indiana does not recognize same sex marriage, Indiana must give full faith and credit to the marriage which was duly solemnized in Iowa and hereby grant the parties' dissolution of marriage."

Foster said he filed the lawsuit for his client, not to make any kind of political statement or take on a cause, but rather to help a friend.

"He came and asked if I would do this," Foster said. "It was hard to do, because we know his spouse."

The couple have no children and very little property to divide, Foster said.

Wetli wants only to undo the legal status of being "married," Foster said.

"I personally think it will work," he said. "I don't see why the court wouldn't grant it."

Legal woes

The issue showed up earlier this month in federal court in Indianapolis with a trio of lawsuits filed against the state, challenging the ban on same-sex marriages and the refusal to recognize marriages solemnized in other states.

Among the three suits was one that included plaintiffs Linda Bruner and her wife, Lori Roberts. The two have been married since 2010, having had a lawful marriage in Iowa.

Together since 2003, the couple have been raising Roberts' two children. However, they recently separated in a split that included a protective order in Hancock County, according to court documents.

On Jan. 31, Bruner filed for divorce in Marion County, though the position of both the Marion Circuit and Superior courts is that the courts do not have jurisdiction to dissolve same-sex marriages.

Should her request for a divorce be denied, Bruner intends to appeal to the Indiana Court of Appeals, according to court documents.

"The trial court's refusal to grant a divorce to (Bruner) denies her access to the courts and a meaningful opportunity to be heard in violation of her constitutional rights," wrote Bruner's attorneys in their complaint. "Further, (Bruner) is forced to remain in an unhealthy and unsafe marriage."

If she cannot get a divorce, Bruner, who is an emergency medical technician, may be forced to leave her home and move to another state that recognizes the marriage legally performed in Iowa, according to court documents.

Uncharted waters

Steve Sanders, an associate professor of law at Indiana University's Maurer School of Law, teaches constitutional and family law. He has written about legal issues surrounding same-sex couples with children.

In order for a couple to get a divorce, the state must first recognize that there is a legal marriage to dissolve. Virtually all states recognize marriages that are valid and legal in other states, he said.

But Indiana has emphatically rejected the legitimacy of same-sex marriages, and so any same-sex marriage that comes from out of state is void.

"You have to have a marriage that is recognized before you can have a divorce," Sanders said.

The argument for a same-sex divorce may have a slight chance of success if the couple lived somewhere else where same-sex marriages were legal and recognized, and then for some reason found themselves relocated to Indiana, he said.

If they needed to divorce, the fact that Indiana wouldn't recognize their marriage means that, through no fault of their own, the contract on which they counted was void.

"There's a much stronger argument," Sanders said. "Essentially they have lost something on which they were entitled to rely."

You make long-term plans for your life and you shouldn't be deprived of what you rely on, he said.

It is a much weaker argument if the couple lived in Indiana, traveled to states like Iowa to obtain a same-sex marriage and then returned to Indiana.

Getting a divorce under that circumstance would be trickier, Sanders said.

Such a couple is basically in the same boat as those same-sex couples who live in Indiana and are suing the state to obtain a marriage license, he said.

While it is possible to divide property when couples split up, such action requires that couples provide evidence that when they went into the marriage they established a pre-existing agreement or understanding about their assets and property if they were to split up, Sanders said.

Divorce cases like Wetli's lie in largely uncharted territory, he said.

Most lawyers and most judges would likely fall on the side of not being able to get a divorce based on existing state law and how it is interpreted, he said.

That is different from saying that that is what the law should be, Sanders said.

rgreen@jg.net

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