Domestic Relations
By Nicole Rutter-Hirth Co-Chair Domestic Relations Section Gump, Deal & Hirth
Same Sex Marriages, New Divorce Rules
D
ivorces are complicated, legally and emotionally speaking, despite who is involved. A failed marriage is not less painful simply because it involves parties of the same gender. And while the same statues apply to all divorces, the legal issues in same sex divorces are unique. This is largely because same sex marriage has only been recognized in Ohio for a few years. This means two things; there are no long-term same sex marriages and there is a lack of case law for us to rely upon to navigate the unique legal issues that arise in these unions. I can proudly say I have handled several same sex divorces in Montgomery County. I should note the pride I express is not in the divorce itself, as few divorces are proud moments for me. The pride I am referencing was mostly due to the court’s genuine interest in researching the unique issues that arose in these particular cases. Same sex divorces carry a few notable differences from opposite sex divorces, which I will generally address here.
1. Limited Awards of Spousal Support
An award of spousal support is largely based on the length of the marriage. Spousal support is not typically awarded unless the parties have been married for several years. In general practice, a marriage of five years is considered long enough to award spousal support to an economically disadvantaged party. The amount of support is largely based on the length of the marriage. Traditionally, an order of spousal support is ordered for one-third of the length of the marriage. And the court looks to the length of the marriage to determine how much to award. A marriage exceeding thirty years often yields income equalization, while a short-term marriage may yield a much smaller award. Because same sex marriage was not legalized in Ohio until 2015, long term same sex marriages simply do not exist. This results in fewer and shorter awards of spousal support in same sex divorces. In fact, a same sex person who got married in Ohio as soon as it was legal has only now been married five years, just now creating a more viable claim for spousal support. As a result, spousal support is less likely to be awarded in same sex divorces due to a lack of long-term marriages. And generally speaking pre-marital cohabitation plays very little role in a divorce. For example, parties who cohabitate for ten years, and marry for two, have been married for two years. This constitutes a short-term marriage, limiting division of assets and allocation of spousal support. 14
Dayton Bar Briefs April 2020
Recognizing spousal support claims may be limited, a divorce attorney looking to advocate for their same sex divorce client must get creative. First, we can use the statute. R.C. 3105.171 addresses spousal support and does not require a minimum marriage length for an award of spousal support. That statute merely states the length of the marriage is a factor for consideration. Thus, an argument can be made for spousal support, despite the short duration of the marriage, especially if the economic disparity between the assets and incomes of the parties is significant. Second, divorce courts are largely guided by principles of equity. An equity argument can be made that the parties could not have had a longer marriage and it would be inequitable to define their marriage simply by the date on their marriage certificate. This is especially true if they lived as a married couple would or otherwise held themselves out to be a married couple, perhaps in domestic partnership status. This maybe proven by showing even prior to marriage, during cohabitation, they acquired property, opened joint bank accounts, or otherwise comingled assets. There is also a constitutional argument to be made under the same rationale. One could argue same sex couples are not afforded equal legal remedies due to the court not recognizing their marriage until recently (which has now been determined to be unconstitutional). For example, it was impossible for them to acquire marital property, or achieve a marriage long enough to warrant spousal support when they were prevented from marrying. Thus, the court should look beyond the date of marriage, and consider cohabitation prior to marriage, when considering an award of support to afford them the same rights as opposite sex couples. Third, if all spousal support argument fails, counsel can request an unequal (yet still equitable) division of assets and liabilities. The idea is simple; award the financially disadvantaged party more assets, or fewer liabilities, in lieu of an award of spousal support. Or, as argued above, argue for the court to divide property acquired before the marriage, if it was acquired during their relationship or cohabitation, on the basis that the property would have been marital if they were permitted to marry.
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