A Word of Caution: Divorcing LGBT Couples in a Post- Obergefell World


When were you married? The answer to this seemingly simple question may not be so simple for lesbian and gay married couples even following the U.S. Supreme Court’s landmark 2015 ruling in Obergefell v. Hodges that required recognition of same-sex marriages. The date a couple married is certainly important for those in intact relationships for things like social security benefits or inheritance rights. It is perhaps even more important when same sex couples divorce.

As family law attorneys and mediators know, the length of the marriage dictates the type and length of spousal support that might be awarded upon dissolution of marriage. It also will be relevant to the determination of whether something is a marital or non-marital asset or debt. Particularly poignant in the context of many divorcing lesbian and gay couples, the date of marriage may establish the legal parentage of a child, based on whether the child was born during an intact marriage and/or within the relevant timeframe outlined in Florida’s parentage statute, or not.

So why is it “not so simple” to determine the date of marriage for a same-sex couple, post-Obergefell? The primary reason is the proliferation of legal relationships that states adopted over the last few decades, the goal of each being to give lesbian and gay couples some legal recognition of their relationships. A number of states have even recognized different legal forms at different historical moments. Because of this, many same-sex couples have gone through multiple efforts to establish a “more perfect union,” including traveling to other states or to Canada where there was stronger relationship recognition than in their home state.

The question, then, is which of those efforts establishes the date of marriage? It is not necessarily the date an actual marriage certificate was issued, nor the date the Obergefell decision was handed down. To determine the date of marriage requires analysis of the law of the state where the particular legal relationship was originally established.

Take, for example, a couple who entered into a civil union in New Jersey in 2008, and moved to Florida in 2012. They took no subsequent steps to formalize their relationship, and now are seeking a dissolution. An attorney facing this scenario will need to know the legal status of the civil union under New Jersey law. That is, New Jersey recognized same-sex marriage in 2013. Upon doing so, New Jersey eliminated civil unions, and then automatically issued marriage licenses to all who had previously entered into civil unions in their state. The date of marriage for this couple is likely 2008, rather than 2013. If it had been a Vermont civil union from 2001, the result would be similar, due to a Vermont court ruling that a civil union is the equivalent of a marriage.

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Imagine another common situation involving a Massachusetts couple who vacationed in Hawaii in 1997, and while there, register as reciprocal beneficiaries. When marriage becomes legal in their home state of Massachusetts in 2004, they marry there. Again, the attorney will need to investigate the status of reciprocal beneficiaries’ status under Hawaii law, before leaping to the conclusion that the date of marriage is 2004. Does it make a difference in Hawaii that the couple were not Hawaii residents? How have Hawaii courts treated reciprocal beneficiary relationships since recognizing same-sex marriage in 2013?

Take one final example. A gay couple goes through a marriage ceremony in Pennsylvania in 1981, performed by a minister of the Metropolitan Community Church. They retire to Florida in 2008, and now are separating. Pennsylvania didn’t recognize same-sex marriage, per se, until 2014. However, it did recognize common law marriages, provided there was a formal marriage ceremony, if entered into prior to 2005. Thus, this couple’s date of marriage will be 1981, rather than 2014, or even 2015 when marriage was recognized in Florida.

While there may be many ways in which litigating and/or mediating same-sex dissolution cases may be “just like” (or at least very similar to) handling opposite-sex divorces, this is at least one way in which they are different. Family law attorneys and mediators should educate themselves on this and other potential legal issues when working with lesbian and gay couples who are seeking to dissolve their marriages. C. Quince Hopkins 

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