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.