Same-Sex Divorce Post-Obergefell – Why the Decision Isn’t the End of the Line

By Christa G. Heckman*

On June 28, 2015, the Supreme Court of the United States issued its landmark decision in Obergefell v. Hodges, 577 U.S. ____ (2015), Docket No. 14-556. This decision was the culmination of six different lawsuits from Ohio, Michigan, Kentucky, and Tennessee, involving multiple same-sex couples, several children, a widower, a funeral director, and an adoption agency.

Both before and after Obergefell, an opposite-gendered married couple could pretty well take for granted that when they crossed state lines their marriage would be considered valid in every state from Alabama to Wyoming, through the Full Faith and Credit Clause of the United States Constitution.

Same-gendered couples, on the other hand, were in the “wild west.” Marriage laws fall under the purview of the individual states, and each state did something different. And those laws evolved over time, often tumultuously. Some states allowed same-sex marriage. Some recognized a same-sex marriage that was legally performed elsewhere, but not one performed within the state. Some, like Ohio, had gone to great lengths to ban same-sex marriage entirely. Still others created a separate legal status called a “civil union,” which conferred some legal rights, but fell short of calling itself a “marriage.” And, some of those civil unions have since been automatically converted into marriages after the passing of same-sex marriage laws.

Ultimately, of course, the majority opinion of the Supreme Court’s Obergefell decision was that same-sex couples are guaranteed the right to marry, and bans like Ohio’s were found to be clear violations of the Fourteenth Amendment’s guarantee of due process and equal protection under the law. A tremendous victory to many, and a terrible upset to others, Ohio law changed overnight. Moving forward, the rights are much clearer. But, for the enormous number of families who got caught in the quagmire, even post-Obergefell, there is still work to be done.

State legislatures have not yet caught up with Obergefell. Ohio’s Supreme Court has taken steps to install the use of neutral terms in family law matters and, effective March 15, 2016, has revised its family law forms to use gender neutral terms such as “spouse” and “parent,” in lieu of gender specific terms like “husband” and “mother.”

While that is a start, it is only the tip of the iceberg of statutes that need revision post-Obergefell. Parenting issues are some of the stickiest even when heterosexual couples uncouple and, until the law catches up, the challenges are multiplied for same-gendered couples. Unless the discussion involves adoption, Ohio’s laws generally reference a biological mother and a biological father, leaving open more questions than answers as to how domestic relations courts will deal with these issues.

For example, R.C. §3111.03 provides that children born during a marriage are presumptively the children of the husband of that marriage. But that statute is not gender neutral, and it specifically references “a man” and the “child’s mother.” Moreover, this statute provides a rebuttable presumption of parentage – one that can be rebutted by genetic testing. Clearly, this statute cannot simply be made gender neutral and be expected to have the same effect for same-gendered couples.

There is a statute dealing with parentage in cases of artificial insemination – R.C. §3111.95. But that statute similarly references “a married woman,” and her “husband” who has consented to the artificial insemination. As yet, there is no presumptive parentage in cases where artificial insemination was utilized in a same-sex marriage.

On the other hand, what happens when both parents have some relation to the child, whether legal or biological? For example, some same-sex couples will choose to have one partner provide the egg, while the other partner is impregnated through in vitro fertilization and carries the child as the gestational surrogate. Or, sometimes, genetic material might be used from a family member of one partner in order to maintain genetic relations. It appears that the Ohio Department of Health is now allowing parents to identify themselves as “mother,” “father,” or “parent,” and to specify their gender. What is less clear is how these specifications may survive a challenge against the parent without well-defined legal status.

It remains to be seen what the existence of these gender-specific statutory terms mean for the rights of the parent who falls outside of the basic legal definitions of “mother” and “father.”

In many of these cases, couples may find themselves litigating on two fronts – a divorce in divorce court, and a custody battle in juvenile court. While this is an option and, sometimes, the only option, it is certainly not ideal in terms of cost or expediency. Further, while the juvenile courts and divorce courts could ultimately reach the same parenting outcomes (because the law on custody and parenting time is the same across the courts), practitioners are cognizant of the fact that parents start out a divorce case on more equal footing.

R.C. §3109.03 provides that:

When husband and wife are living separate and apart from each other, or are divorced, and the question as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children is brought before a court of competent jurisdiction, they shall stand upon an equality as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children, so far as parenthood is involved.

Logically, the presumption of parental equality should extend to children born of a same-sex marriage. But, as it stands, courts are left without clear statutory direction on this issue, and a couple could find themselves before a jurist who takes a strict reading of the law, possibly as a political statement, or even because they simply feel hamstrung by the restrictive language of “husband/father” and “wife/mother.”

The tools we use for children born to unmarried parents are insufficient to address the problem. Ohio’s Putative Father Registry was specifically designed to be a mechanism for identification of the individual admitting to be the biological father, and the statute at the heart of that – R.C. §3111.31 – at present refers specifically to “the natural father” of the child and the “mother.”

Step-parent adoptions are a possibility post-Obergefell. This is tremendous news for blended families who are finally able to legally formalize these relationships in the same way heterosexual couples can. It is also a potential method for the non-biological parent to overcome the sorts of hurdles outlined in this article. However, for the latter purpose it is neither ideal, nor a long-term solution to the overarching problem because it creates hurdles for homosexual couples that similarly situated heterosexual couples do not face.

As a practical matter, it seems logical for a domestic relations court to nevertheless have subject matter jurisdiction over the children of a homosexual marriage, just as for a heterosexual marriage. Yet, until the law catches up, challenges will continue to arise and it is extremely important to carefully examine the facts of each matter to ensure a couple is getting the best result.

Beyond parentage issues, post-Obergefell, other, more surprising issues are coming to light. What of the civil unions entered into in other states? Do those have continued legal meaning? Ohio did not previously recognize civil unions and, presumably, will not now start. On the other hand, in states where they are recognized, they are often in effect until formally ended. To further complicate things, some states simply converted registered civil unions to valid marriages by operation of law. Theoretically, parties to those unions were informed of the change. But, some couples may have already split and moved apart without realizing the need for further action. Inadvertent bigamy, or even a more willful failure to disclose a prior relationship, are concerns that should be carefully reviewed in these matters.

And, so-called “marriage evasion” or “reverse evasion” statutes were enacted pre-Obergefell in a handful of states, including Illinois, Louisiana, Massachusetts, Vermont, and Wisconsin. Generally, these statutes sought to avoid an influx of couples who were prohibited from marrying in their home state and wanted to take a trip to another state where they could marry. These statutes create unexpected pitfalls that can render an otherwise valid marriage void ab initio.

Still another post-Obergefell challenge is property division. Common law marriage has not been recognized in Ohio since 1991. But, whereas heterosexual couples could have solemnized their union but chose not to, in the pre-Obergefell world, same-sex partners had no option to get married in Ohio. Couples, then, made lives together, often for decades, comingling monies, buying property, accumulating wealth and debt. R.C. §3105.171, the property division statute, permits a court to look outside of the legal dates of the marriage (which would generally extend from the date of the marriage was solemnized to the date of the final hearing) if it determines that the use of such a date would be “inequitable.” The spousal support statute, R.C. §3105.18, gives a trial court similar discretion. However, until a wide body of case law develops on these issues, it is impossible to give assurance that an equitable result will be reached.

The Obergefell decision turned Ohio law on its head overnight. And, as happens frequently, the law fails to keep up with the pace of life. On the surface, it seems so simple. Same-sex marriage is now legal. Yet moving forward it is apparent that, for the foreseeable future, same-sex family law matters will require even more thorough analysis than the average heterosexual divorce case in order to make sure everything is handled in an appropriate manner.

This article originally appeared in the 2016 Family Law Issue of the Cleveland Municipal Bar Association Journal.