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.