Prior to the 2015 Obergefell v. Hodges decision, each state in the United States could enact its own definition of marriage and effectively exclude marriages between same-sex individuals, such as the Ohio statute at issue in Obergefell. Prior to this decision, same sex marriage and divorce was a patchwork from state to state: while some states enacted full marriage equality in all respects, a range of complications could exist in any other state, from complete ban to varying degrees of semantics and privileges. Since Obergefell found these bans against same-sex marriage unconstitutional, each state now is required to recognize a same sex marriage, even one enacted in another state.
A major obstacle to divorce prior to Obergefell was subject matter jurisdiction, or the ability of a court to render decisions on a given subject. This is important because before a court can issue a divorce, it has to first agree that there is a marriage or other legally recognized relationship, and then it has to find that it has the authority to end that relationship. Subject matter jurisdiction is therefore the critical question to whether a same-sex relationship will be afforded the same divorce protections as an opposite-sex marriage because without it, there is simply no way to obtain the protections of a state’s family law statutory scheme.
Prior to Obergefell, there were, for all intents and purposes, three rough categories of same-sex divorces:
The first type is a couple who married in the same state where they live, and the result is the same for that couple regardless of whether or not they are in a state that recognizes same-sex marriages. If the state recognizes same-sex unions, the state necessarily would build subject matter jurisdiction for the dissolution into the statutory scheme providing for the union, and the state would find subject matter jurisdiction of the dissolution. Similarly, if the state did not recognize same sex unions, the couple’s relationship within that state would never be officially recognized and there would be nothing to dissolve.
The second type of relationship is one in which the couple marries in a state that recognizes same-sex marriages and files for dissolution in a state that provides subject matter jurisdiction to that type of relationship. Once again, this is not a problem for the couple because the state would find that it has subject matter jurisdiction to dissolve their union.
The last category, and most problematic, is one in which a couple marries in a state that recognizes same sex marriages, but then attempts to dissolve the marriage in a state that does not recognize same sex marriages and does not find subject matter jurisdiction to dissolve the marriage.
Colorado has circumvented this problem through perhaps the simplest solution: simply enact a provision in the dissolution of marriage scheme that treats every legally recognized same-sex relationship from anywhere as a marriage for the purposes of divorce. This eliminates any need for creative legal arguments on subject matter jurisdiction to account for semantic differences between states and provides the same protections to every divorcing couple. There is no separate scheme for same-sex dissolution of marriage—arguably a cynical step towards equality.
At three years old, the Obergefell decision case law has not yet fully developed to accommodate every situation. For example, many couples have considered themselves spouses for years or even decades before same-sex marriage was an issue in the public consciousness. For an opposite-sex couple, they would have been married under common law, but this option was not afforded to same-sex couples until recently. Because spousal maintenance and division of assets depend so heavily on the length of the marriage, it would be unfair to long-term same-sex spouses to only consider them married as of the Obergefell decision or Colorado’s Civil Union statute, both of which became law within the last ten years. Although common law marriage would be available to same-sex couples today, the question of how far back a common law marriage can be recognized remains unresolved.
Attorneys should also carefully consider equitable division of shared assets. The only reason that many same-sex couples have shorter marriages is simply because their marriage was illegal until very recently. This means that even prior to legal recognition of their relationship, the couple had been living together as functionally married, sharing assets and debts and commingling funds. They may refer to one another as husbands or wives. They may have had a commitment ceremony years before the relationship became legal. All of these factors would strongly indicate a common law marriage if the couple were opposite sex. A ruthless ex who makes more than his former husband might be tempted to argue that the relationship was invalid before an official marriage or before legalization, but both parties called each other husband and lived as a married couple, despite invalid marriage status.
There is a legal and an ethical reason against that argument.
The legal reason is that upon the issuance of the Obergefell decision, same-sex marriage bans were found unconstitutional, and the decision likely applies retroactively. This means that although at the time of formation of long term same-sex relationships, they were technically “illegal,” the Supreme Court has gone back and invalidated laws against them retroactively, rendering the ongoing relationships valid and permitting the standard common law marriage arguments and evidence to support a lengthier marriage. In situations where the couple had a commitment ceremony prior to legalization, this provides a clear point at which the marriage began. If the couple lived as a married couple under what we would now consider common law, this also may provide a clear beginning. A challenging situation, and one which is likely a matter of first impression, is whether a couple who lived as spouses until legalization and subsequently obtained a certificate marriage, should look back prior to the date of the certificate marriage, given that the couple might have married if they had been legally allowed to.
To segue to the ethical reason against the argument for a short marriage, the ruthless ex who just wants his husband to go away might argue that the years they spent living as a same-sex married couple are irrelevant and the only date that matters is the date of the certificate marriage, just after Obergefell. While attorneys have an obligation to do what’s best for our clients, this argument essentially invalidates countless relationships that were only informal by necessity.
As more time passes, legal concepts related to same-sex dissolution will become clearer. Subject matter jurisdiction was formerly an obstacle to same sex dissolution of marriage across state lines, but today the issue has been resolved, at least in the State of Colorado, by a simple statutory fix. As various issues arise and work their way through the court systems, questions on how to determine the length of a same-sex marriage after legalization will undoubtedly work themselves out and become clearer. It is imperative, then, that attorneys involved remain sensitive to same-sex marriage issues and pursue their clients’ issues while remaining mindful of the effect each ruling will have on the legal landscape as a whole.
For more information or for help with your divorce, please contact Modern Family Law for a free initial consultation.
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