Same Sex Divorce - What We Know So Far
Two years ago today, on May 20, 2014, the Supreme Court of Pennsylvania ruled in the case of in Whitewood, et al., and determined that same sex marriage would now be recognized in the courts of Pennsylvania. As of that date, despite the fact that it was not yet nationally recognized, the state of Pennsylvania determined that they would extend the right of marriage to same sex couples throughout the Commonwealth of Pennsylvania.
The cases so farThe opinion issued by the court, which is linked below, (http://www.pamd.uscourts.gov/sites/default/files/opinions/13-1861.pdf) went on to state that Pennsylvania, in addition to recognizing same sex marriages performed within our state, would also recognize same sex marriages from other states. This would mean that any same sex couples would have all of the rights, and also the responsibilities, that came with traditional marriage, including, though not specifically enumerated in the opinion, the right to divorce. It would be more than a year later, specifically on June 26, 2015, until the Federal Courts, by way of the Supreme Court opinion in the case of Obergefell v. Hodges, would determine in that these rights should be extended nationwide. It seemed that this very emotional, complicated issue of same sex marriage had been rather succinctly resolved by the courts. However, neither the Supreme Court's opinion nor the State of Pennsylvania's opinion spoke much about same sex divorce. The fact of the matter is that most people do not generally enjoy discussing divorce. Thus, it is probably not a great surprise that when issuing this ground changing legal precedent, that the issue of what happens when a same sex marriage ends never made its way into the courts' opinions. Same sex divorce, however, has made its way into our courts, and with it comes a host of novel issues which have yet to be resolved through either legislation or through court precedent. In the case of a same sex marriage, one of the most difficult questions to determine is what is the actual date of marriage? The actual date that the same sex couple became a legally recognized couple has been subject to a fair amount of argument in this burgeoning area of law.
Let's look at a hypothetical situation:Let's say we have same sex couple who met in Pennsylvania in the early 1990's, dated for a period of time, and began living together in 1994. Then, in 2005, the couple traveled out of state to New Jersey to obtain a civil union and then returned to Pennsylvania. On exactly May 25, 2014, just a few days after the Pennsylvania court's May 20, 2014 decision, the couple decided to become legally married in Pennsylvania. And on June 26, 2015, the Supreme Court said they were married in all 50 states now. Then, in May of 2016, the couple separated.
So When Did They Get Married??The federal government has only recognized same sex marriage for a period of eleven months, but Pennsylvania's May 20, 2014 ruling allowed this couple's marriage vows to take place in Pennsylvania on May 25, 2014, and be legally recognized and recorded like any other marriage. However, the hypothetical couple's civil union in New Jersey began ten years prior to their legal marriage in Pennsylvania. Further, the date they began to reside together as a couple, in 1994, predates their legal marriage by another decade. There is no real answer to this question yet; because there is no prevailing case law, the question remains to be answered. Did the couple marry on June 26, 2015, when the Supreme Court recognized same sex marriage? Probably not. The states have the right to afford greater protections and rights to their population than those afforded by the federal government. Basically, the federal government's rules and rights, etc., are your baseline. The states have a fair amount of latitude to expand upon those federal laws, and considerably less latitude to infringe upon them. As such, June 26, 2015 would not be the couple's date of marriage, given that Pennsylvania's right to issue an earlier ruling on same sex marriage occurred on May 20, 2014. Did the couple marry on May 25, 2014, after the Pennsylvania Courts ruled in the case of Whitewood? This date was when the Pennsylvania Court recognized same sex marriage and permitted the issuing and recording of same sex marriage licenses. However, in the case of our hypothetical couple, they were together for more than twenty years prior to the state's ruling. Does that count for anything? The case of Whitewood also gave full faith and credit to marriages occurring in other states stating "and already married same sex couples shall be treated as such." So did this couple's marriage begin in 2005, since they obtained a civil union in New Jersey? This date may not be right either because in Whitewood, it states that there will be full faith and credit to "already married" same sex couples. It does not say civil unions, and it does not say domestic partnerships. If one looks to the laws of New Jersey, they have, at various points in time, recognized domestic partnerships, civil unions, and same sex marriages. Each of these is a separate legal animal, and none of them automatically converts to the other. So...can Pennsylvania give full faith and credit to a New Jersey civil union, and treat that as the date of marriage? Maybe. Some courts have done this, though I think a technical reading of Whitewood does not extend that far, which leaves this issue unresolved. Finally, did the hypothetical couple potentially marry back in 1995, when they began living together? Again, this is a maybe. Historically, Pennsylvania recognized common law marriage, i.e. people are married if they held themselves out to the world as "husband and wife." Obviously in this case we are talking about "husband and husband," or "wife and wife," so is it possible that it should still hold true? While the divorce code amendments of 2005 directed that common law marriage would no longer be recognized going forward, there was no prohibition on looking back on common law marriages that came into effect prior to the 2005 amendments. Is this perhaps what should be happening with same sex marriages? Maybe. But again, the fundamental issue is this: Is it even possible for two people to hold themselves out in a husband and wife like manner, when the right to be husband and husband, or wife and wife, did not exist for them? Heterosexual couples who decided to act as husband and wife, but not solemnize their marriage, had this other option. With same sex couples, this option did not exist. Again, this would only be applicable in a situation where the parties' relationship predated the 2005 divorce code amendments, and the relationship existed for a duration of more than ten years. What happens with relationships that existed for less than ten years? This is an excellent question, because nobody knows for sure at this point. Many arguments have been made that the courts (in their efforts to effectuate economic justice), should look to the period of time that the parties were in a relationship, but not yet in a legally recognized marriage. Of course, this opens the can of worms for heterosexual couples who had resided together for long periods of time prior to actually getting legally married to argue the same thing. However, there is a factual and a legal argument to be made that the two are not analogous, since the heterosexual couples would have had the right to get legally married had they so chosen. So when did they get married?