Potter v. Weier

Aug 29, 2014

OUTCOME: Same Sex Divorce Granted before it was legal in Ohio

This past summer, I received a call from a man regarding a same-sex client who married his husband in New York but both resided in Ohio. My client had put every major asset he purchased—including his w ... ork truck, trailer, and farm—in his partner's name but his partner and he were splitting up. In fact, my client’s husband was in contract to sell their home for which my client paid and against my client's wishes. Initially, I set out to draft a grandiose complaint in the Court of Common Pleas General Division. Unfortunately, because time was of the essence as the closing for the property sale was fast approaching and my client needed an injunction to prevent the sale, I made the decision to take the risk and file the case in the Court of Common Pleas Division of Domestic Relations—a court which grants injunctions/restraining orders very quickly and without hearing, but at that time did not recognize same-sex marriage. On the day of the closing, I received word that the court had granted my motion for restraining order thereby enjoining the Defendant from selling the property until further order of the court. Immediately, I got in my car and drove to the courthouse—over 65 miles away—to retrieve the restraining order. Upon arrival, I retrieved the restraining order and headed to the title agency and personally served the title agents with the injunction. Their faces were priceless. They could not believe that a gay couple got an injunction in a divorce action. Thereafter, I served the Defendant's real estate agent who was equally surprised. After about a week I learned that I successfully prevented the sale of the property thereby preserving my client's interests in his home. Moreover, as he runs his business from the property in question, by preventing the sale my client could maintain his business. The whole time this case was pending, I kept thinking, "When is this court going to dismiss this case." My best guess was that it would be dismissed at the first hearing when the court saw two men asking for a divorce. As time went by, the Defendant hired his own attorney and he and I exchanged motions and other pleading. The opposing counsel maintained that all the property was his client's separate property and they were going to take the case to trial. Myself, still believing the court would dismiss it, continued to work on the general division complaint. After the court made temporary orders and I objected to some of the terms therein, and the opposing counsel filed a Motion for the Sale of the Real Property as Separate Property, the Court finally set a hearing on the objection and motion for August 29, 2014. As that day approached, I finalized my general division complaint in anticipation of the dismissal. On the day of the hearing, we met with the Judge in chambers and discussed the merits of the case but not the sex of the parties. After some discussion, she informed my opponent that she would not grant his motion to sell the property but would keep all property of the parties within the court's jurisdiction until the case was fully adjudicated. As time went on that day, my opponent and I began to try to work out a settlement. I started to get the feeling that this judge was not going to dismiss the case. After some intense negotiations, the Defendant decided to do the right thing and agreed to split the equity in the home, give my client his truck and trailer for which my client paid but was in the Defendant's name, and we came to terms on the settlement of the entire case. Thereafter, we went before the court and took our clients' testimony. The judge, never flinching once, made the divorce an order of the court. That may have been the first same-sex divorce in the state of Ohio! It was an amazing time!