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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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