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Dissolution of same-sex marriages a legal puzzle for lawyers, judges

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Indiana Lawyer Focus

“A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” – Indiana Code 31-11-1-1.

Indiana statute makes clear the state’s position on same-sex marriage, but it also leaves murky the rights of Hoosier couples who, despite the law, are legally married.

“We are supposed to, if a marriage is legal somewhere else, honor it,” said attorney Karen Jensen. “Equally placed people should have the same rights.”

harmon-kathy-mug Harmon

But because same-sex marriage isn’t recognized in Indiana, neither is same-sex divorce. In 2009, Jensen unsuccessfully sought a dissolution of marriage for Larissa Chism and Tara Ranzy, who had been wed in Canada before moving to Indiana.

Marion Superior Master Commissioner Jeff Marchal at the time denied the petition, citing I.C. 31-11-1-1. But in that case and one other same-sex dissolution that’s come before him, he found a tightrope to walk. Rather than grant the dissolution, he ordered the marriage null and void.

“It seemed the only other thing I could do. The only other option was to say, ‘You’re still married,’ and I can’t fathom that’s what the General Assembly intended,” Marchal said.

Jensen and Marchal recalled a parking garage conversation they had some time later in which Marchal told Jensen that he had hoped the parties would appeal his decision to perhaps settle the law. They chose not to appeal, and Jensen said she couldn’t discuss the reasons without breaching confidentiality.

In the cases where Marchal has voided unions, there have been no children, no assets to divide and the dissolutions were uncontested. Whether denial of a dissolution petition for same-sex couples

violates the Full Faith and Credit Clause of the U.S. Constitution is an unanswered question, he said, but it’s also a question that’s never been pleaded before him. “I didn’t think it was appropriate for me to start raising issues,” he said.

Jensen had hoped that the case would find a basis in the state’s divorce statutes, which make no mention of gender. Denying application of those laws to same-sex couples seems to conflict with the Full Faith and Credit Clause, she believes.

How family law attorneys counsel same-sex couples has swiftly evolved and will continue to do so, particularly in light of last month’s Supreme Court of the United States decision striking down the definition of marriage in the Defense of Marriage Act.

Kathy Harmon, a partner at Mallor Grodner LLP in Indianapolis, is representing Donald Schultz Lee in his dissolution petition against Justin Chad Schultz Lee. The couple married in Massachusetts, and Harmon counseled her client to wait until the SCOTUS ruled on DOMA to file the divorce action. The case is pending before Marion Superior Judge David Shaheed.

“Whether you approve or believe in same-sex couples or not, we’re going to have to address what you do with same-sex couples married in other states,” Harmon said. “What’s the remedy?”

After Harmon filed the petition, she said “the phone started blowing up” with media inquiries.

“We weren’t planning on doing a media tour, so to speak. This isn’t something he’s doing for the purpose of being a trailblazer or a pioneer. … He just wants to get a divorce and move on with his life,” she said.

Harmon’s firm counsels many same-sex couples, and she explained that the issues they face can be addressed contractually in most instances. Cohabitation agreements, general power of attorney arrangements and health care power of attorney agreements can protect same-sex couples in much the same way a marriage license assures the rights and benefits of couples as defined by Indiana law.

Still, “Indiana has been fairly progressive whether it knows it or not” on matters that impact same-sex couples, Harmon said. Elimination of the inheritance tax, for instance, benefited same-sex couples by removing taxes on asset transfers that were higher than those for recognized families. She noted the state also was among the first to allow adoption by same-sex couples.

lee-donald-mug Donald Lee

Kokomo attorney Megan Schueler of Noel Law blogged about the Supreme Court’s June decisions on same-sex marriage, which also included a ruling that held proponents of California’s Proposition 8 did not have standing to appeal a federal court order holding the initiative defining marriage as between a man and a woman violates the 14th Amendment. She said that even as the court gave momentum to same-sex couples, its decisions left open questions for Shaheed and other judges.

“I wouldn’t want to be that judge,” she said, noting the question of standing is among the unsettled issues. “This is the kind of case that can go up and overturn DOMA Section 2,” which says states shall not be required to recognize same-sex marriages performed elsewhere.

Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller, said the office has not been named or served notice of the Schultz Lee case as would be required if the constitutionality of state law were being challenged. “It would not be appropriate for us to make assessments or predictions at this early phase” about whether the AG’s office might become involved, he said.

Indiana University School of Public and Environmental Affairs associate professor Beth Cate said it’s also unclear whether the recently decided Supreme Court cases might grant couples another avenue if their union dissolves by going back to the state or jurisdiction where the union was made official.

“Can you get into another state’s court without being a resident? … I think that’s an unknown, and at this point I wouldn’t say it’s out of the question,” she said.

Cate compared recognition of same-sex marriage to heterosexual marriages performed elsewhere in which parties were married when they were younger than the laws of a different state would allow. Those marriages nonetheless are recognized. “It may not be a wholly new issue,” she said.

“By eliminating a uniform federal definition of marriage, it creates a need to resolve these issues,” she said. It will be up to the states to decide questions such as same-sex divorce, but she anticipates that as the cases arise, there could be changes in attitudes for opponents of marriage equality.

“I think that to the extent that these cases put a face and a real set of facts and circumstances and relationships on same-sex marriage … hopefully that will deepen the analysis of what the policy considerations should be,” Cate said.

Jensen is more blunt. “We live in a civil society, and this issue of homosexuality is a civil issue, not a religious issue,” she said.

Harmon said it’s difficult to predict other issues that may arise from the SCOTUS ruling on DOMA. “The ruling is so new that I don’t know that we’re going to know for several months what’s flowing out of it.”•

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

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  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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