Same-Sex Divorce Marriage Start Date: Cohab vs. Legal Marriage

Why the Marriage Start Date Matters in Same-Sex Divorce Cases

In divorce actions involving same-sex couples, one key issue is how courts determine the same-sex divorce marriage start date – whether it begins at cohabitation or the official legal marriage. In 2015, the Supreme Court decided in Obergefell v. Hodges all same-sex couples in the United States have the constitutional right to marry. The case arose from challenges to Michigan, Kentucky, Ohio, and Tennessee laws that banned same-sex marriages and the recognition of legal same-sex marriages that were performed in other states. Click here to read more from our previous blog article.

The Court focused on whether the Constitution’s Fourteenth Amendment requires states to give marriage licenses between same-sex couples and if the Constitution requires states to recognize legally obtained marriage licenses from other states.

The Court held that the right to marry is a “fundamental right” that is “inherent in the liberty” of a person under the Equal Protection Clause of the Fourteenth Amendment, making it unconstitutional for courts to deny same-sex couples the right to marry or recognize marriages performed in other states.

This ruling has afforded same-sex couples the right to marry on the same terms and conditions as opposite-sex couples. It also provides that same-sex couples the same marriage benefits provided to opposite-sex couples including access to employer benefits, tax advantages, Social Security benefits, estate planning rights, immigration benefits, and the ability to sponsor children through family-based adoption.

As same-sex couples are afforded the marriage licenses through the same process as opposite-sex couples, they are can also dissolve their marriages through the same legal process as opposite-sex couples, through either divorce or dissolution. One key aspect of a divorce or dissolution may be the determination as to the equitable date to utilize for the start of the marriage. Just like Courts can determine a De Facto date for the end of a marriage, they can also determine an equitable De Facto date of the start date of the marriage as well. This date is also utilized to determine division of property and term for the spousal support/alimony.

While the Obergefell ruling requires the recognition of these marriages, and works retroactively, there has been some discourse on the determination of what the couple’s date of marriage would be. Some courts will use the original marriage date as the legal date of marriage, but others will extend the date of marriage to an earlier date if the couple was living together as a married couple prior to their ceremonial marriage, sometimes known as tacking. Many courts seem resistant to this concept, and while they utilize different methods to determine if this earlier date should be tacked on and used as the De Facto date of the start of the marriage, these methods often require a high standard of proof.

Standards Courts Use to Decide the Same-Sex Divorce Marriage Start Date to Tack On the Period Living Together Before the Official Marriage Date

In the case K.L.V. v. M.M.W., which took place in Pennsylvania 2018, the court determined the plaintiff did not meet the burden of proof to show the couple had a common law marriage prior to their ceremonial marriage. Pennsylvania law requires a party to prove, by clear and convincing evidence, an exchange of words in the present tense with the intent to establish a marital relationship that the parties intended to live as a married couple. As the plaintiff was unable to provide such clear and convincing evidence, the court denied the request to determine the couple had a common law marriage prior to their ceremonial marriage.

The same standard of proof was required in the case Gill v. Van Nostrand, which took place in the District Court of Columbia in 2019. In this case, the court ruled the party failed to prove the couple had a common law marriage prior to their ceremonial marriage because they did not have clear and convincing evidence that the parties made an “express mutual commitment” to each other.

Colorado courts have been shown to utilize a different standard, the Lucero standard, to determine the existence of a common law marriage. This standard requires a party to prove by a preponderance of the evidence that mutual consent or agreement by the parties to be married, followed by a mutual and open assumption of a marital relationship occurred during the period of cohabitation. Essentially that they held themselves out as a married couple. The Colorado Court utilized this standard when making their decision in the case Hogsett v. Neale, where they found the party did not meet the burden of proof to establish the existence of a common law marriage.

Another Standard Used to Decide the Same-Sex Divorce Marriage Start Date

Yet another differing standard was utilized in the case In re Domestic Partnership of Walsh, which took place in Washington. In this case, the court outlined a set of factors utilized to determine if a common law marriage had existed prior to the ceremonial marriage. These factors include continuous cohabitation, relationship duration, relationship purpose, pooling of resources, and the parties’ intent. In this case, the court determined the trial court failed to accurately consider these factors when evaluating the existence of a common law marriage, therefore issuing a judgement for a retrial.

In Candelaria v. Kelly, a case that took place in Nevada in 2023, the court recognized that Obergefell applied retroactively to lawful marriages performed in other states, however, found that it is not mandated to do so. The court came to this decision as they concluded that they could not create a marriage or rewrite laws which ban common-law marriage, or make an exception to this ban. Therefore, they rejected establishing and extending the parties date of marriage to an earlier date.

These cases show the difficulty and high standards often required by Courts to allow the earlier date of cohabitation to be utilized as the De Facto date of the marriage. Because of that, same-sex couples often are not awarded “marital’ assets acquired during their cohabitation period. Further, they may not likewise benefit by receiving a longer window of spousal support/alimony because the cohabitation period was tacked on to the period after the official legal marriage date.

If you have questions about how courts determine the same-sex divorce marriage start date, our experienced attorneys at MuesLaw can help.

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MuesLaw can assist you with your divorce or dissolution related issues. To learn more, please go to our website at www.MuesLaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to assisting you!

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PUBLISHER’S NOTE:

I want to thank Gloria Williams, a second-year law student at the University of Dayton School of Law for her work helping to write and research this article. Gloria has been clerking with MuesLaw this summer and is also continuing with us this semester too! Well done, Gloria!

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