Sea of Love or Uncharted Seas?

Now that the United States Supreme Court has made marriage equality the law of the land, Ohio divorce practitioners will have a myriad of new legal challenges to confront when it comes to divorces which terminate these marriages.  There are some unchartered waters ahead.

Three challenges come to mind, and are the subject of this, my first ever blog post.  It is my hope that colleagues, mental health professionals who are divorce coaches and financial professionals involved with divorcing couples will start to think about these issues that we will see, and contribute to the discussion below.

The first challenge concerns children and the allocation of parental rights and responsibilities.  I  must admit, thinking about this one too much will keep me up at night.  Currently children born during the course of the marriage to one spouse are presumed to be issue of the marriage.  For many same sex couples, children are only biologically related to one of the parents.  How does that presumption affect these families?  Unless and until Ohio has second parent adoptions, will a child who is biologically related to only one of the parents be considered “issue of the marriage?”  For other same sex couples, a sperm donor was selected by the parents to produce a child born during the relationship.  Will that child be considered to have been born as “issue of the marriage” when it comes to allocating parental rights and responsibilities?  If the other biological parent is known to the parents (not an anonymous donor) and the other biological parent is actively a part of the life of the child being raised by the married same sex couple, will the court treat that child as issue of the marriage?  How will parental rights and responsibilities be allocated and to whom in that case (just the married couple, or to the other biological parent as well)?

The second issue that comes to mind is with regard to the commencement date of the marriage.  What about those couples who have been together since before October 10, 1991? Will these couples, who were unable to have their union recognized in Ohio before Friday, June 26, 2015, but who may have otherwise had some or all of the indicia of common-law marriage present in their relationship since before October 10, 1991 be recognized as being married prior to October 10, 1991? There are tremendous implications for these couples with regard to the division of assets, and in particular retirement assets. There are also tremendous implications for these couples with regard to considerations of spousal support.

The third and final issue for this blog post is perhaps less remote than the situation faced by couples who have been in a committed long-term relationship that predates October 10, 1991. Ever since the Eighth District Court of Appeals ruled in Bryan v. Bryan that the commencement date of the marriage can predate the ceremonial date of marriage, the door has been opened, at least in the Eighth District Court of Appeals (Cuyahoga County) for same-sex couples married on or after June 26, 2015, to have a de facto commencement date of the marriage which precedes June 26, 2015. I would surmise that many, many couples who married ceremonially on June 26, 2015, actually lived together for years, or decades, prior to the landmark ruling by the United States Supreme Court. What is the commencement date for those marriages?

I invite your thoughts and comments and look forward to reading your ideas concerning these, and other issues, as we try to help our clients navigate this uncharted sea.

By | 2017-07-03T01:46:02+00:00 July 5th, 2015|Blog|5 Comments

About the Author:

John J. Ready
Mr. Ready is a frequent lecturer on continuing legal education topics including domestic violence, alternative dispute resolution (ADR), guardian ad litem representation, parent coordinator practice and the examination of expert witnesses. His community activities include serving on the City of Lakewood Citizens Advisory Counsel and Board of Zoning Appeals. He served on Cleveland Catholic Diocese, Diocesan Pastoral Counsel and the St. Malachi Center Board of Trustees. Mr. Ready serves as a lector and lay minister at St. Malachi Church in Cleveland, and also serves as a lay minister at the hospice known as Malachi House.

5 Comments

  1. Howard Kasdan July 10, 2015 at 1:02 am - Reply

    John,
    Interesting article/blog. Raises intriguing questions which will be fodder for the family law attorneys. Sorta glad I retired and don’t have to deal with all these new issues. On the other hand, it could have been an interesting challenge. Best of luck dealing with these issues. Your skill and integrity will lead.

  2. John J. Ready
    John J. Ready July 23, 2015 at 2:16 pm - Reply

    Thank you Howard for your kind words. Your wise counsel would certainly be welcomed by your colleagues when dealing with these significant changes to the practice. Great to hear from you and thanks again.

  3. Bill Hunt July 23, 2015 at 3:26 pm - Reply

    Your succinct identification of these issues – as I would expect – is right on target. We may have some indications of answers soon. I have a divorce case pending in Cuyahoga County where we represent the non-biological mother. where the couple has two children by the biological mother-partner – one before the Canadian marriage and one after. We are looking to establish parenting rights for our client as to both children. Stay tuned – at least through the court of appeals, if not the Ohio Supreme Court. Thanks for hosting this forum, John.

  4. Amy Wirtz July 30, 2015 at 12:39 pm - Reply

    John: My mind has been plagued with these questions since I did a same sex adoption in Lorain County 15 years ago with Judge Horvath. He would NOT allow both mothers to adopt the child, who was a foster child no one else would take into their home, andonly one Mother was legally his parent. This broke my heart because both parents were involved with this very complicated child and loved him.
    The social and legal issues surrounding homosexual families are complicated.Love dictates all relationships but does not dictate the law. I will watch in wonder how the court handles these issues over the next ten or fifteen years. Thanks for the thought provoking blog.

    • John J. Ready
      John J. Ready July 30, 2015 at 2:48 pm - Reply

      Thank you Amy. The state legislature needs to get to work and approve of second parent adoption in the State of Ohio. This has been the lynch pin relied upon by various courts to thwart efforts to have shared parenting for same sex couples. For those never married same sex couples, biology wins out every time, especially away from the large counties (Cuyahoga, Franklin etc.) and despite the fact that the non-biological parent may be the “psychological parent.”

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