Zashin & Rich: Case Law Update Alert

Nearly a year ago the Supreme Court of the United States issued its landmark decision in Obergefell v. Hodges. This decision was the culmination of six different lawsuits from Ohio, Michigan, Kentucky, and Tennessee, involved multiple same-sex couples, several children, a widower, a funeral director, and an adoption agency, and came after years of appeals in multiple federal courts. Until Obergefell, it was the “wild west.” Marriage laws fall under the purview of the individual states, and each state did something different. Some allowed same sex marriage. Some did not allow same-sex marriage to be performed in the state, but would recognize valid marriages from another state. Others, like Ohio, had gone to great lengths to not only ban same-sex marriages within the state, but also to forbid recognition of otherwise-valid marriages performed elsewhere. The result of years of such a hodgepodge of divergent law was that a large swath of the population was left with an uncertain marital status, unclear parental rights, and very real practical issues related to issues like divorce, inheritance, adoption, bankruptcy, tax filing, and on and on.

Ultimately, the majority opinion of the United States’ Supreme Court was that same-sex couples are guaranteed the right to marry, and that laws like Ohio’s were 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. Call to speak with a Zashin & Rich lawyer today about your situation. We have the tools to help you navigate this legal minefield and bring your matter to a resolution.

2023-11-10T13:38:13-05:00May 23rd, 2016|Divorce, Same-Sex Marriage|

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.

2023-11-10T13:38:13-05:00March 1st, 2016|Divorce, Obergefell v. Hodges, Same-Sex Marriage|

Property Division in Divorce – The Hurdles of Same-Sex Marriages

There once was a couple who during a beautiful ceremony in a friendly locale
swore to be together until death pulled them apart. After their marriage they
went back home and purchased a house and a couple of cars. They took trips and
bought furniture. This couple even had kids and spent more money than they ever
dreamed they could. And then one day, they decided they no longer wanted to be
together. So they divided all the property that they had accrued and determined
who was going to take what debt. They decided where the kids would live and
when and with whom. There was no animosity; the decision to split had been a
joint one and they were still friends. But what appeared to be a simple
solution was not so simple for this same-sex couple. Although they were married
in a state that recognizes same-sex marriages, and were in fact “legally
married,” their home state considered them to be nothing more than
roommates.

Simply put, it is problematic for same-sex couples living in states that do not
recognize same-sex marriages. All those “benefits,” like the ability
to divorce, that are given to heterosexual married couples do not exist. So
what are the options for couples who find themselves in this situation?

To begin with, same-sex couples who are married in a state that recognizes
same-sex marriages but live in another state should be proactive and enter into
a Domestic Partnership Agreement. While this type of agreement is also useful
for heterosexual couples who are not married, the Domestic Partnership
Agreement also acts as a Prenuptial Agreement for those who are not recognized
as being married. With this document the couple can outline what will happen in
the unfortunate event that they wish to sever ties.

The couple described above did not have the foresight to enter into such an
agreement. Luckily for them they werein complete agreement regarding issues
such as property division, child custody, support, and retirement benefits.
This couple is able to take the private mediation route and enter into a
Conciliation Agreement. This contract contains all the terms that are agreed
upon by the couple when dissolving the relationship.

Unfortunately for couples who did not enter into a Domestic Partnership
Agreement and are not in any way amenable to a division, the road to
“divorce” or separation as the case may be, will be a little muddier.
Who will determine who keeps the house, the car, or the kids? No court order
will determine what portion of your retirement fund your partner is entitled
to. No judge will tell you that you have to pay spousal support or child
support or Capital One for that trip to Maui. You both want the house – a
partition action will need to be filed (in a regular civil court, as opposed to
a domestic relations court) if you both hold title to the home. If only one of
you has the title, the other may end up with nothing. You both want the cars
and the furniture – yet another civil suit. You both want the kids (but only
one of you can be considered the legal parent) – you will find yourself in
Juvenile Court. No one wants the debt – but if your name is on it, it’s yours.
And of course everyone wants spousal support, but too bad, you were never
married. Same thing goes for that portion of the retirement account you thought
you were entitled to. How can it be determined what portion goes to you when
you were never considered to be married? What if you were living together as a
married couple for 15 years before any state even said you could get married. See
the problem?

With a same-sex couple, there are always going to be roadblocks when it comes
to divorce beginning with considering where and how to start the process and
ending with how to tie up the loose ends that occur at the end of any type of
long-term relationship. This is why it is important for same-sex couples to be
proactive and talk to an experienced family law attorney about drafting a
Domestic Partnership Agreement, or if failing to enter into one, how to
navigate through the complex legal proceedings necessary to obtain an equitable
result.

2023-11-10T13:38:16-05:00July 29th, 2013|Same-Sex Marriage|

Gay Divorce: How Do You Get Divorced When the State Doesn’t Think You’re Married

As many gay celebrities poise to marry after the US Supreme Court declared
the Federal Defense of Marriage Act (“DOMA”) unconstitutional last
month, Jane Lynch and wife Dr. Lara Embry, who were married in 2010 in
Sunderland, Massachusetts, are preparing to divorce. The question is, will
their home state of California allow them to dissolve their marriage? While
Lynch and Embry were able to have their Massachusetts marriage legally
recognized in California, they would not have found themselves in the same
circumstances if their home state was Ohio or one of 36 other states that do
not recognize same-sex marriages. And if the state doesn’t think you’re
married, how can you get divorced? Even though DOMA was considered
unconstitutional, the validity of marriage is still determined by each
individual state. The US Constitution holds that each state must accord
“full faith and credit” to the acts of other states. That means that
if New York allows same-sex couples to marry, Ohio must recognize that
marriage. Not so fast! While the Supremes declared Section 3 of DOMA which bans
same-sex marriage as being unconstitutional, they did not address Section 2
which allows the states to refuse to recognize same-sex marriages performed in
other states. While Section 2 is in controversy with the Full Faith and Credit
Clause, it has yet to be challenged or ruled unconstitutional. So where does
that leave the Ohio same-sex couple who wishes to divorce? Somewhere in legal limbo.
Ohio law does not only ban same-sex marriage, it does not recognize same-sex
marriages that were performed in other states. In 1978, long before DOMA or
Ohio’s official ban on same-sex marriage, two women attempted to divorce in
Cuyahoga County, Ohio. Their case was dismissed on the basis that nothing in
Ohio’s law provided for same-sex marriage. In the 8th Appellate District
decision that affirmed the trial court’s decision to dismiss, Judge Day
concurred “American conceptions of Equal Protection have not developed far
enough to reach the Equal Protection arguments made in this case.” Irwin
v. Lupardus, 1980 Ohio App. LEXIS 12106 (Ohio Ct. App., Cuyahoga County June
26, 1980). It seems that we have still not developed far enough. In 2012, a gay
couple was able to get divorced in Franklin County. Days later a lesbian couple
was denied divorce in the same court. Judge Jim Mason ruled that “Because
same-sex marriages have no legal effect in Ohio … the court is required to
dismiss any dissolution or divorce proceeding requesting the termination of
same-sex marriage for lack of jurisdiction.” It is probable that the
couple that divorced was successful because they used a private judge that was
appointed by the Court and who specializes in alternative dispute resolution.
In an interesting side note that seems to have largely escaped media attention,
the lesbian couple subsequently divorced in a different Ohio county. It is
apparent that different courts and trial judges are interpreting the issue
quite differently, and this area of law will doubtless continue to develop. In
order to avoid traditional litigation, parties can utilize a private judge.
Ohio Revised Code § 2701.10 provides that retired judges may hear civil
actions. The couple must agree to have their case decided by a retired judge,
and these retired/private judges do charge for their services meaning it will
be a good bit more expensive than litigation through an active judge or
magistrate. The retired judge is given all powers as an active judge and the
retired judge’s findings will be filed with the court. Any judgment made by the
retired judge will have the same weight, and is appealable, as if made by an
active judge. However, in order for the parties to appeal, they must hire a
court reporter so that there is some sort of record of the proceedings. Whether
or not this private method of litigation will continue to be successful in
divorcing same-sex couples remains to be seen. As previously mentioned in this
blog, there are ways for same-sex couples to dissolve their marriage without
obtaining a traditional dissolution or divorce. These other methods are costly
and oftentimes involve multiple lawsuits, especially if children are involved.
A cheaper option – the Domestic Partnership Agreement – can be executed by all
couples whether they are gay, lesbian, or heterosexual. This contract can
outline every term that could be contained in a divorce decree – only at the
beginning of the relationship rather than at the end. Sort of a Prenuptial
Agreement, without the nuptials. This method is not only helpful to unmarried
Ohio couples that buy a home together, intermingle funds, and/or raise children
together, but for those same-sex couples who are legally married in another
state, find themselves residing in Ohio, and are now looking for a way to end
the marriage. Just this week the ACLU filed a suit in Pennsylvania challenging
that state’s gay marriage ban. Similar lawsuits are sure to follow in other
states, including Ohio. Until then it is important for same-sex couples
residing in states like Ohio that do not recognize same-sex marriages, to be
proactive in outlining issues such as finance and property division, future
support, and child custody and visitation decisions in a document such as a
Domestic Partnership Agreement.

2023-11-10T13:38:16-05:00July 11th, 2013|Same-Sex Marriage|

Same Sex Marriage/Divorce – Federal DOMA: A Brief History

As you know if you’ve gone online, turned on your television or radio, or
even picked up a newspaper recently, the issue of same sex marriage is a
particularly hot topic right now. But it’s not a new issue, to be certain. And,
in a relatively short period of time – from the Clinton administration to the
Obama administration – the stance of the federal government has vastly changed
as the public opinion is changing.

Gay rights advocacy reached a fevered pitch in 1993 when the Supreme Court
of Hawaii determined that the state’s ban on same sex marriage required a
strict scrutiny review. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). While
the ban was ultimately upheld, the threat of a state allowing same sex marriage
caught the nation off guard. After all, not only is there a question of one’s
particular moral compass, but married couples are entitled to a multitude of
financial benefits that cohabiting couples aren’t. Not to mention the question
of whether a state would have to recognize – even if it didn’t want to – a same
sex marriage solemnized in another state.

In the aftermath of Baehr, the federal government was pressed to take
action. Marriage is a state issue, which means that the United States
Constitution probably restricted a nationwide ban of same sex marriages. To get
around this, in 1996 the federal government sought to defend the sanctity of
traditional marriages by enacting the Federal Defense of Marriage Act
(“DOMA”). With this controversial law the federal government was able
to accomplish two things. First, DOMA defined marriage as a union only between
a man and a woman. Thus, it eliminated any spousal benefits same sex couples
might be entitled to under federal law. Second, DOMA permitted states to refuse
to recognize same sex marriages performed in another state.

While various laws both for and against same sex marriage have made the
rounds through various courts over the years, the United States Supreme Court
had yet to offer its opinion, until very recently. On June 26, 2013, the US
Supreme Court declared DOMA unconstitutional. In United States v. Windsor, the
Court found that DOMA deprived individuals of the equal liberty entitled to
them under the 5th Amendment. President Obama declared the Supreme Court’s
decision “a victory for couples who have long fought for equal treatment
under the law”. Certainly this decision has been viewed as a victory by
gay rights advocates, even as retractors are regrouping from this blow. But the
decision does very little to advance same sex marriages in states that do not
allow them. Windsor merely established that if a state recognizes same sex
marriage, the federal government will also recognize these marriages. Windsor
has no bearing on states, like Ohio, that ban same sex marriage.

However, Windsor does create an inherent conflict between states that do not
recognize same sex marriage and those that do. For example, a same sex couple
that is married in New York, but wanting to divorce in Ohio, may find that they
can’t get divorced at all. The laws are unclear as to whether divorce laws can
be applied when the state says the marriage is a nullity. Thus, the New York
couple could find that upon their split there are no rights to spousal support,
no rights to children, and on and on. Ultimately, this conflict may push same
sex couples legally married in other states to challenge Ohio’s ban. In any
event, it is clear that while Windsor will have no immediate impact on same sex
marriage in Ohio, this debate is far from over.

2023-11-10T13:38:16-05:00July 3rd, 2013|Same-Sex Marriage|

What Does the Legalization of Same-Sex Marriage Mean for Divorce?

Effective July 24, 2011, New York will join the small but growing list of states that explicitly recognize and permit same-sex marriages. Many lawmakers and members of the general public remain opposed to same-sex marriage, but New York’s decision suggests that wider acceptance may be on the horizon.

Within any random sample of couples a certain percentage will choose to part ways. This is a fact. And, as we previously argued on this blog, it is a significant reason in support of the legalization of same-sex marriage and, as a consequence, divorce. When an unmarried same-sex couple separates there are ways to divide their assets, debts, and children. These available legal tools are blunt – like using a hacksaw instead of a scalpel to perform a delicate surgery. They are clunky, inefficient, expensive, frequently unfair, and sometimes unworkable. Generally speaking they do get the job done, but the process is invariably much more complex than it could be were all issues addressed in one action, before one judge, in the divorce court.

But, the continued existence of the federal Defense of Marriage Act and the hodgepodge of state laws on same-sex marriage will give rise to a largely untested and perhaps largely unanticipated issue in terms of same-sex divorce.

Say a same-sex couple is married in New York and then later seeks to divorce in New York, or in another state that recognizes the union. This scenario should play out no differently from any heterosexual couple seeking to divorce.

But what if the couple marries in New York and then moves to Ohio, or to any other state where same-sex unions are not recognized? The Ohio court is very likely to find that it has no jurisdiction to grant a divorce because, under Ohio law, the couple is not actually married.

So, what is the couple to do? Each state sets its own jurisdictional requirements for divorces, which frequently mandate the would-be divorcees live in the state for several months prior to filing. The couple’s options then become limited to a physical move to a state that will divorce them, or a separation without a divorce that neither provides any legal mechanism to divide property or determine children’s issues, nor permits any subsequent marriage. Neither option is very palatable.

It remains to be seen what future changes may be made in this area of Domestic Relations Law, both in light of and in spite of the actions of New York’s legislature. Changes in the law generally lag behind, often by a considerable period of time, changes in social norms and public policy, and the full impact of having vastly divergent laws as to what types of unions are recognized from one state to the next is not yet clear. But, it is clear that, as more and more same-sex couples are able to legally marry, more and more courts will be called upon to determine the proper jurisdiction to divorce them. For same-sex couples, this is an area of consideration when planning your lives together. For state governments that have so far managed to avoid the same-sex marriage debate, this is a public policy question that may soon require an answer.

2023-11-10T13:38:18-05:00July 1st, 2011|Divorce, Same-Sex Marriage|

An Argument for the Legalization of Same-Sex Marriage

People like to talk about principle. Clients will often walk through our doors and say that “the principle is worth fighting for, regardless of the cost.” And some principles really are worth fighting for. But is this always true? Does principle always outweigh the cost? Consider same-sex marriage. People have all sorts of principles that make them either for or against it. In fact, more often than not the subject is considered only through the very narrow lens of principle. Opponents consider it to be a matter of religion or morality. Proponents consider it to be a matter of discrimination and civil rights. But both sides are missing a significant point – there is a very real financial impact.

Each and every taxpayer bears a financial burden when same-sex marriage is not legally recognized. It doesn’t matter whether you are for or against same-sex marriage, it is regardless of your sexual orientation, and it is irrelevant if most of your friends are gay or none of them are; YOU are subject to a negative financial impact when the law does not recognize same-sex marriage.

Individuals chose to get married for a number of reasons. It may be for love. It may be for money. It may be for religious reasons or to please one’s parents or because of an unplanned pregnancy. But, especially for couples who are already cohabiting, one of the primary reasons two people marry is to save money.
Simply put, it costs less to live as a unit than to live apart. The mortgage or rent is halved. The grocery bill is cut. Utility costs are shared. Only one lawnmower need be purchased. Instead of maintaining two households, the couple need only maintain one. On top of that substantial cost savings, employer-subsidized insurance is frequently offered to employees’ spouses and, more recently, domestic partners. It is not difficult to see why a couple in a committed relationship would opt to get married to take advantage of these benefits, as well as tax breaks, surviving spouse benefits, and so on.

For love, money, or any other reason, it is a fact that many gay and lesbian couples will chose to cohabit even if they cannot be married in a legal sense. True, opposite sex couples are going to cohabit as well, but experience shows that the vast majority of couples who may legally marry will do so rather than cohabit indefinitely, making this more of an issue in same-sex unions. And, just as legally married couples grow apart and opt to divorce and go their separate ways, cohabiting same-sex couples will break up and go their separate ways. This is when it affects you.

When a legally married couple divorces, the family law practitioner relies on the specific laws, court divisions, court personnel, and processes that have been put in place to deal with such cases. Divorce courts are equipped to handle the division of all assets and liabilities, support awards, and children’s issues in the context of one lawsuit. No jury is involved, and only one judge is engaged in deciding all issues necessary to fully and finally terminate the union. But a couple that is not legally married cannot get divorced. Such laws do not apply to them.

When a same-sex couple splits we, therefore, do not have access to the domestic relations process and must rely on ordinary civil tools to separate the couple. And while divorce cases can continue for many months or even years, the domestic relations process is substantially streamlined as compared to the blunt tools that must be used to separate an unmarried, cohabiting, financially intertwined couple.

Where a married couple may be divorced via one lawsuit, the issues raised by an unmarried cohabiting couple are potentially so different from one another that several actions may need to be filed just to split everything up. If the couple owns real property, a partition action may be needed to determine each side’s interest. Tort or contract lawsuits may be filed over personal property. A separate action might be filed to split a jointly owned business. If children are involved, a juvenile case will be necessary. What could have been resolved in one suit were the couple legally married might suddenly require four or more lawsuits. Each suit bogs down an already clogged court system, and costs significantly in terms of court time, court space, jury seating, and the like, expenses that are ultimately borne by the taxpayers. (And this doesn’t account for the engorged court docket that will slow down your case should you find yourself in civil court!)

Even further, outside of the domestic relations court there is no mechanism to provide spousal support to a party. In a divorce case, if one party has a substantially higher income than the other, spousal support may be appropriate to provide a lower income spouse with the means to pay his or her living expenses. When dissolving a same-sex partnership, the lower income spouse won’t receive support, and very well may end up on public assistance as a result.

And while we’re talking about public assistance, were same-sex couples permitted to marry they would more likely have access to health insurance through their spouse, keeping those without other means of obtaining insurance from having to turn to taxpayer-funded programs like Medicare and Medicaid. Perhaps worse, it might force the insured to seek basic medical treatment at the emergency room and forego all preemptive care, practices that clogs the system and substantially raises costs for everyone.

The issue of same-sex marriage is a very polarizing one, and both sides generally feel very strongly about their respective principles. Regardless of which side you are on, though, it is worth comparing the value of the principle to the financial cost. It is difficult to rebut the argument that the prohibition of legally recognized same-sex marriages, or some variation like a civil union providing the same rights, affects us all. And the most efficient and beneficial use of taxpayer dollars should be important to everyone.

Have thoughts or comments on this post? Do you agree or disagree with this argument? Please don’t hesitate to contact us!

2023-11-10T13:38:18-05:00May 6th, 2011|Divorce, Same-Sex Marriage|

Same-Sex Marriage and the Respect for Marriage Act

On September 21, 1996 President Bill Clinton signed into law the Defense of Marriage Act (“DOMA.”) The DOMA is short – its effective sections contain fewer than 150 words. Yet those few words make a monumental impact on the lives of millions of United States citizens.
First, the DOMA defines a “marriage” as a legal union between one man and one woman, and a “spouse” as a person of the opposite sex who has a husband or wife. This is extremely significant because more than 1,000 federal statutory provisions and untold numbers of federal regulations make certain benefits, rights, and privileges contingent upon or otherwise related to marital status. Everything from the bankruptcy code to the tax code to Social Security and Medicare benefits to immigration laws have provisions specific to married couples.

Second, while such a “marriage” performed in one state must be recognized as valid in all others by virtue of the United States Constitution, the DOMA provides that a same-sex marriage need not be recognized by anyone. For example, a same-sex marriage validly performed in Massachusetts need not and will not be recognized as valid in many states, including Ohio.

The issue of same-sex marriage is a polarizing one, with one side adamant that same-sex marriage must be permitted as a matter of civil rights, and the other side adamant that same-sex marriage must be banned as a matter of tradition or morality. Regardless of the argument supported, the DOMA also raises the issue of federalism versus states’ rights. Traditionally state government, not the federal government, determines what constitutes a valid marriage. This is why you will find varying laws from one state to the next as to the minimum age at which one may marry, when parental consent is required, and how close of relation may marry.
Because marriage has historically been a matter for the state governments, the portion of the DOMA that defines “marriage” at the federal level has been criticized and challenged in the court system since its inception. Now, with more and more states recognizing as valid same-sex marriages performed in other states, and some permitting same-sex marriage in their state, the tide may be changing.

On February 23, 2011, fifteen years after the Act’s passage, and not even two years after the Department of Justice opined that the DOMA is constitutional, Attorney General Eric Holder announced the executive branch revised its opinion and determined that the DOMA is unconstitutional. Because it infringes on states’ rights by attempting to define “marriage” and “spouse” at a federal level, the Department of Justice has ceased to provide any legal defense of these DOMA provisions.

For its part, the legislative branch has shown signs of repealing the DOMA altogether. On September 15, 2009 New York Representative Jerrold Nadler introduced the Respect for Marriage Act in the House of Representatives, with 91 initial sponsors. This Act would continue to permit states to determine the validity of same-sex marriage. But, for purposes of the hundreds or even thousands of federal statutory and regulatory provisions that relate certain benefits, rights, and privileges to marital status, a same-sex marriage would be considered valid so long as it was valid when and where performed.

By 2010, the Respect for Marriage Act had 120 sponsors, not enough to move it forward, but enough to suggest a shift in public policy. On March 16, 2011 Rep. Nadler again introduced the bill and it has been referred to the House Judiciary Committee. Simultaneously, California Senator Dianne Feinstein introduced the bill to the Senate Judiciary Committee. A copy of the proposed bill is provided here. At present, the bill lacks the signatures necessary to move forward. Nevertheless, these government actions since 1996 and most recently suggest that a repeal of the DOMA and the extension of federal benefits to same-sex couples are forthcoming.

2023-11-10T13:38:18-05:00March 29th, 2011|Divorce, Same-Sex Marriage|
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