Cincinnati Family Law & Divorce Blog: Same-Sex Marriage Questions & Answers

With its decision in Obergefell v. Hodges (June 26, 2015), the United States Supreme Court has secured the right to marriage, and also divorce, for all same-sex couples across the country. Following this momentous decision, gay and lesbian couples now have an array of legal options that were previously unavailable. Along with these options may come some questions. In this post, we will attempt to answer a few of the most common questions that have come up since same-sex marriage was legalized. The first and most obvious is, can I now marry my partner anywhere in the country? And the answer is yes! Now for some more difficult questions:


Q: If I was previously married in a state that allowed same-sex marriage, can I now get divorced anywhere?


A: Yes, but you still must meet the general requirements for jurisdiction and venue that exist for all divorces. In Ohio, you must reside in the state for six months prior to your divorce or dissolution filing and in the county in which you plan to file for a least ninety days before initiating your action.


Q: If I get married now, will my assets from prior to my marriage date be considered marital or separate, especially if I was with my partner for many years prior to marriage?


A: This is a much more complicated question. Some argue that a strict application of the law is appropriate: your assets will be treated the same way as a divorcing straight couple’s, and anything you had prior to marriage would still be separate. Others may argue that because marriage has not been available to same-sex couples in the past, long term couples should have some other, earlier, date by which to evaluate their assets in the event of a divorce. In Ohio, our district appellate courts are currently split on whether or not a court may choose a date earlier than the actual marriage date for the determination of marital property. We expect to see this issue decided by the Ohio Supreme Court in coming years to bring clarity on this point. Many factors may come into play, such as the length of the relationship, how assets were allocated prior to marriage, and whether you and your partner held yourselves out as spouses prior to your legal marriage. The best approach may be to enter into a prenuptial agreement outlining your mutually understood intentions before you get married.


Q: Can I get married if I am currently in a civil union or a domestic partnership?


A: It depends. There are different requirements based on the state in which you entered into your domestic partnership or civil union. If you plan to get either married or divorced, make sure to notify your attorney of any prior civil union or domestic partnership so she or he can be certain to appropriately handle the issue.


Q: My partner and I have a child together and I am the biological parent, do we need to get married in order for my partner to obtain full parental rights? How would custody be determined if we later divorce?


A: Yes. In Ohio, “second parent” adoptions are forbidden. This means that the unmarried partner of a biological parent cannot adopt a child without the biological parent relinquishing his or her rights. Ohio does, however, allow for step-parent adoptions, thus, if a same-sex couple gets married, the non-biological parent may adopt the child without the biological parent relinquishing any rights. If a divorce occurs after a step-parent adoption, custody would be determined in accordance with the Ohio Revised Code for all married couples, as part of a regular divorce proceeding.


These are just a few brief answers to some of the many complex questions raised by the legalization of same-sex marriage. The Ohio Bar Association has recently formed a committee to review and evaluate our statutory language. It will likely be necessary for many of our laws, court and other legal forms, and procedures to be updated to account for same-sex marriages and divorces. This is an exciting and developing area of the law, and we look forward to receiving more guidance from our legislature and state courts in the coming months and years.