Years ago I married a man who I thought I loved. It quickly became clear that he was “not my bag,” so to speak, and we went our separate ways. Since then, I’ve come out and finally have the chance to marry my long-term partner, a woman. I never got a divorce, since it didn’t occur to me that I would one day be able to take advantage of same-sex marriage, as I live in a pretty conservative state. I haven’t spoken to the man I married in years, and I don’t even know where to begin tracking him down. Could this cause any problems for my upcoming nuptials? –Terry
As same-sex marriage enjoys more and more legal acceptance throughout the country, I’ve had a few people approach me with similar questions.
The short answer is you will not be able to legally marry your current partner if you have yet to get a divorce from your past spouse. The law considers the two of you to be legally married, even if you don’t. Beyond just keeping you from marrying someone else, the fact that you’re still married means that your spouse still has all the rights and privileges that flow from marriage. So, for example, if something happened to you, he could inherit your assets, and have other rights you probably don’t want him to have at the expense of your current partner, your family, or anyone else you might want to leave your estate to. Some of these issues can be remedied with a well-drafted will, but he may still be able to make a claim against your estate if you pass away before divorcing him. So, even if you aren’t considering remarriage, it’s important to close that chapter of your life and get a divorce so it doesn’t come back to haunt you later.
As for the divorce itself, it will be a lot easier for you to obtain a divorce if you can track down the man you married and proceed together, assuming your relationship is amicable. If you can’t find him and don’t know where to look, you may want to hire a private investigator, and you should certainly consult with an attorney before proceeding. In New York, if you absolutely cannot find him, there are still ways to obtain a divorce. You should discuss these possibilities with your attorney. Congratulations on coming out and best of luck in your new relationship.