DOMESTIC RELATIONS

By Nicole Rutter-Hirth Co-Chair Domestic Relations Section Gump, Deal & Hirth

Same Sex Marriages, New Divorce Rules

Divorces 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.

Dayton Bar Briefs April 2020 14 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.

DOMESTIC RELATIONS: Same Sex Marriages, New Divorce Rules continued from page 14

2. Allocation of parental rights

Parentage is no longer limited by biology and certainly not in same sex marriages. In same sex relationships, often one of the parties is a biological contributor to the child of the relationship. And at least one of the parties is not. The intent of the parties may be that they are equal parents to their child, but the law does not recognize this. In a divorce in Ohio, the natural mother gives birth to the child and the only presumption of parentage is that her husband is presumed to be the father of any child born during the marriage. This does not apply to marriages with same sex spouses, meaning “spouses” are not presumed to be the parents of children born during the marriage. The end result is that the parent who did not biologically contribute to the child may not be considered the parent to the child, limiting their rights if the marriage fails.

While there is no statutory presumption that children born during the marriage are the natural children to both spouses, there are other methods to establish parentage. The non-contributing parent can establish parentage at birth by adding that parent to the birth certificate or signing an acknowledgement of maternity/paternity. Birth certificates no longer list mother and father; they can list two mothers or fathers. This constitutes a legal establishment of maternity or paternity. While that establishment does not establish custody or parenting rights, it is the first step in confirming the parental relationship. If this is not done immediately at the child’s birth, it should be done as soon as possible, and certainly before any indication that the relationship between the parents is ending.

A second, more definitive option, is adoption. This is the preferred (and most secure) option as it requires the biological parent to confirm they want their spouse to be viewed as the child’s other parent. Adoption considers several other relevant factors as well including the child’s wishes (if age appropriate) and the length and stability of the relationship between the parents. Notably, the court often explicitly advises the parties that adoption will legally bind the non-biological parent to this child for life, confirming that the parties understand this is the legal effect of the adoption. It also terminates the rights of any other person who may be genetically linked to the child. Adoption clearly confirms it was the intent of the parties to be viewed as equal parents to the child, contrary to their biological contributions. The only downside is that it is a lengthier process than merely establishing maternity/paternity and includes completion of a home study, background check and other more stringent requirements.

www.daybar.org It is critical that a non-biological parent establish parentage. If they fail to do so, and the marriage ends, that parent may be limited in their rights as a parent if the marriage ends. Without a parentage establishment, they may be viewed as a step parent only, which may prevent the court from granting them custody rights. Their best day in court may result in an award of visitation only. On the other hand, absent parentage, the biological parent may be prevented from seeking child or other financial support from the other parent if parentage is not established.

Same sex divorces involve unique legal issues that are not yet codified by statute. There also lacks a substantial amount of caselaw to guide us in the right direction. However, principles of equity prevail in divorces. I handled one of the first same sex divorces in Montgomery County. In that case, there was an abundance of enthusiasm by the judiciary to identify the issues involved and research possible resolutions. In fact, at one hearing, the magistrate commented she had taken several online seminars specific to same sex divorces in anticipation of our hearing. The irony was that opposing counsel and I had each taken the exact same seminars to prepare too. Everyone had the same goal; to gain as much knowledge as possible to ensure the litigants had their day in court.

After completion of that case, and several others, I am proud to report while we still lack legal resources specific to same sex divorces, there is a desire by the legal community to acquire them. And more importantly, that motivation comes from the realization that these parties only had the ability to divorce because they now have the right to be married. A milestone this legal community embraces proudly.

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