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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 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? 

Over the years, I am sure this area of law will continue to develop and ebb and flow, but for now, there are a lot of unanswered questions.  We will keep you posted as new case law begins to develop, which hopefully will not take very much longer.

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Thank you.

www.uncouplingpittsburgh.com

DIVORCE - Making Ours Mine - Division of Assets in Pennsylvania

One of the issues that comes up in all most every divorce and in many separations is how to divide property that parties acquired during their relationship.  Unfortunately, if this relationship was not a marriage, it can be very difficult to figure out how to distribute jointly titled vehicles, homes, and other assets and it may involve numerous separate actions to address these items. 

If the parties who are uncoupling were married, the Divorce Code sets forth well-established rules and guidelines for how to divide those assets that they acquired during the marriage through a process that we call “equitable distribution.”   Many clients I meet with are surprised to learn that, in Pennsylvania, assets are not divided equally.  While they may be, it is not an edict that everything is distributed 50/50.  The court engages in an analysis of numerous different factors to determine what division would be equitable under the circumstances and tries to “effectuate economic justice between the parties.”

What does that mean?

I recently came across a very good quote out of Miller v. Miller, 783 A.2d 832 (Pa. Super 2001) which describes it as follows:

“The methods by which divorcing parties effectuate economic justice are familiar and well settled.  The process of equitable distribution is an exercise in martialing, valuing and dividing the marital pot in a fair manner.  Not every piece of property can or should be split in half.  Sometimes one spouse is entitled to more property than is the other.  In some instances, the sale of property must occur so that each spouse can receive his/her rightful amount.  In other instances, a spouse may be allocated a specific item of property and the other spouse will receive cash or credit for his/her share in that same item.

In all of these scenarios, whether the property division is done by an agreement of the parties or a Court Order, the goal is the same: to take the assets of the marriage and divide them in such a way as to effectuate economic justice between the parties.” 

So, what have we learned from the above quote? 

Frankly, we learn a lot from this little quote. First off, there are a lot of ways to “skin the cat.”  Not only will no two people’s cases play out exactly the same (so just because it happened in your buddy’s divorce doesn’t mean it is going to happen in yours), but it may also be that no two assets in the marital estate are divided the same. 

The courts do not go through the list of marital assets and divide every single one 50/50. 

One asset may be offset against another, i.e. “you are keeping the house, so I am keeping the checking account.”

Or some assets may warrant being skewed more in favor of one party than the other.  So, your overall division of the marital estate might be 50/50 but somebody might get 70% of the fair market value of the property that they inherited two years before separation but retitled in joint names (see my prior post with regards to the “Transmutation of Assets”).  Since the other side didn’t really do anything to generate this asset, this skew in favor of the inheriting party may seem more “just” to the Court.

As stated in the above Miller quote, a big part of the equitable distribution process is to identify the assets and liabilities that are in the marital estate and determine their values.  If you don’t know all of the assets or their values, you may need to engage in discovery, which is a topic I am sure I will get around to discussing at some point.  Thereafter, the Court would move forward with dividing these assets in a manner that seeks to effectuate economic justice. 

It is also important to note that it is well within the authority of the Court to order you to sell off your belongings.  While they are generally not looking to have you fire sale every item you have acquired in the course of your marriage, it may be necessary for a piece of the marital estate to be sold.   Simply because one party may desire to retain an asset, if it is not economically feasible, it may be ordered to be sold by the Court, even over your objection.  

All of the above issues will depend upon the Court’s analysis of what we call the “equitable distribution factors” set forth in the Divorce Code. There are twelve different factors that the Court can take a look at to decide the fairest way to divide assets between the parties.  They may look at the length of marriage, the incomes of the parties, one party’s contributions to the marital estate as a homemaker, what separate assets either party might have beyond the marital estate, etc. 

The Court’s analysis of these factors as applied to the specific facts of each individual case dictate how the Court fashions its award for equitable distribution, which, as stated, may be an equal 50/50 division, but may not.  Again, like with all matters that fall into the Family Court, the determinations that are rendered are usually very fact specific and the change of one of the characteristics about a party or their marriage may have a significant impact on how the marital estate is most equitably divided.

Again, if you are contemplating divorce, for more particular guidance with regards to how your marital estate may be divided, you should consult with an attorney who can review the history of your marriage and the assets that comprise the marital estate to provide you with more specific advice unique to your situation.

If you found this article to be helpful, I ask that you please share it and “like” my page.  As always, if anyone has any questions or suggestions for follow up topics, please comment below. 

www.uncouplingpittsburgh.com

CHILD CUSTODY - But what if we can’t agree? Ways to resolve legal custody/co-parenting issues.

In light of the fact that the vast majority of parents share the right to make major decisions with regards to their children (as discussed in my last post), it is not uncommon for disputes to arise between them as to what is in the best interest of their child. There are several ways they can go about trying to resolve these issues:

1. Litigation: Right, wrong, or other, a traditional way to “resolve” these disputes has been to run to court. In Allegheny County, there is at least one judge hearing motions pretty much every day of the week—sometimes as many as three. A lot of what fills their dockets is people coming to court because they have not been able to make a decision regarding the upbringing of their child.

To the extent that anyone may be harboring delusions to the contrary, let me be clear: The judge does not care about your child’s soccer participation. They don’t care if they play, they don’t care where they play, and they don’t care how well they play. To the extent that you are paying an attorney hundreds of dollars per hour to go to court to try to convince the judge to care about those things, you are wasting your money.

Does this stop people from going to court about these issues? No, not at all. It is probably half of what the judges have to endure each day they hear motions. However, the court does not wish to micromanage the raising of your children or any of the other legal issues that may arise in the course of your uncoupling. I therefore advise people look into some of the alternatives below.

2. Mediation: As I discussed in a prior post, in mediation in PA each of the parties appear together with the mediator to try to work through issues that they have not been able to resolve between themselves. The focus of mediation can be as broad as all support, asset division and custody issues arising in a divorce, or it can be on an isolated issue, like where a child should go to school. A mediator helps guide the parties to a mutually agreed upon resolution and largely serves to help facilitate a dialogue between the parties to reach an understanding and compromise. What happens in mediation is not, however, binding between the parties and they will need to have a formal agreement drafted by attorneys to confirm any arrangements to which they agree.

3. Collaborative Law: As I have talked about previously, in collaborative law each of the parties hires a collaborative attorney and agrees that they will not pursue litigation at any point in time—otherwise they must remove themselves from the collaborative process and find new counsel. Depending upon the nature of the dispute between the parties, they may require the assistance of a collaborative coach to help facilitate their conversations and ultimate resolution. They may also employ a child specialist to provide input from the children involved or a financial expert if matters relative to money are in play. Again, the topics addressed can be quite broad, involving a wide range of issues attendant to uncoupling or more specific discrete issues. At the end of a collaborative process, with the assistance of their collaborative attorneys, parties will enter into a finalized agreement with regards to their collaborative agreement.

4. Co-parenting Counseling: Sometimes, if the parties are having difficulty reaching agreements with one another or being able to share in their co-parenting responsibilities, the court may refer them to co-parenting counseling. In this arena, the parties work through a therapeutic process with a counselor who has a focus on assisting them in improving their relationship with one another as they go about raising their child together. This can be very helpful for people just starting the uncoupling process, as many of these counselors provide insight to the parties’ communication style and where they have difficulty hearing each other and voicing concerns. Parties can be ordered by the court to co-parent counseling and this will often happen if you show up too many times asking the court to micromanage how you are raising your child.

5. Co-parenting Coordination: This was all the rage a few years ago. Parties who exhibited extreme difficulty in working through their co-parenting issues would be sent to a parenting coordinator, who would hear their minor custody disputes. (Usually this happened after parties tried to use the litigation route too often.) The co-parenting coordinator would have the authority to order the parties to do certain things. The parenting coordinator, in essence, acted like a mini-judge that would hear smaller disputes with regards to activities, exchange times, etc., but could not make major changes to the physical custody schedule or the parties’ legal custody arrangement. However, co-parenting coordination has fallen out of favor with the courts, and judges can no longer order parties to participate in the process. However, there is no prohibition on the parties jointly agreeing to enter into co-parenting coordination together and agreeing to be bound by what decisions the co-parenting coordinator might make if the parties are unable to reach an agreement. Similar to going to court, co-parenting coordination was more an avenue of last resort than a first choice, as needing a third party, be it a judge or a coordinator, to make decisions for you is an indication that there are significant communication problems between the parties.

6. The final and probably the best answer to all this is simply talking to each other. While you may need to speak with an attorney to hear what your rights are or speak with a counselor to understand better how your relationship with your co-parent affects you, the most cost effective, long term, and relatively simple answer is to figure out how to work with each other. Maybe you are better if you only communicate via emails, maybe it’s better if you only communicate via telephone, maybe you should try to minimize your communication as much as you can, but the bottom line here is you have to learn how to communicate with each other and the sooner you can get yourselves to a point where you don’t need third parties to help you do that, the better off you probably are.

As always, if you found this post helpful, please share and feel free to comment with questions or suggestions for future posts.

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