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 these relationships, retroactively. This rendered the ongoing relationships valid and permitted 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 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, this could be important.
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 is irrelevant. Thus arguing that 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 the same-sex dissolution of marriage across state lines, but today the issue has been resolved. The State of Colorado, by a simple statutory fix, is now advocating for such relationships. As various issues arise and work their way through the court systems, questions on how to determine the length of same-sex marriage after legalization will undoubtedly work themselves out and become clearer. It is imperative 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, including same-sex divorce.