Same-Gender Divorce Considerations in Ohio

When the Ohio Supreme Court recognized the validity of same-gender marriage and provided the same rights to LGBTQ+ couples as heterosexual couples, the ruling also gave rise to the concept of same-gender divorce. Because same-gender marriage and divorce didn’t “officially” exist in Ohio before the court’s decision, LGBTQ+ couples have some particular considerations for divorce in Ohio.

1. The Date of Marriage

Although same-gender marriage wasn’t legally recognized in Ohio before Obergefell, many same-gender couples did take vows and have a commitment ceremony before 2015. These commitment ceremonies were not legally binding, but some questions have come up about same-gender couples being able to establish a marriage by way of vows or living together for a certain amount of time.

Establishing the date of marriage is important for same-gender divorce in Ohio, as longer marriages establish more marital property to be split among each partner. Under ORC 3105.171 the date the marriage began is an issue the Court determines based upon the equities of the couple before it. The “start date” of the marriage may be a date before the legal ceremonial marriage took place post-Obergefell. The date of the marriage may also affect issues such as spousal support. While there haven’t been many legal updates on this topic, expect to see some developments in the near future.

2. Valuation and Division of Property

Along with the date of marriage issue comes valuation and division of property challenges. Again, it can be difficult to determine how much marital property a couple owns without having a clear view of the marriage date. How did you treat your property before ceremonial marriage? Will that treatment cause the property to be treated as both yours and your partner’s? When did you receive the property? These are questions you’ll have to consider.

3. Custody, Adoption, and Child Care

Another issue that same-gender couples looking to divorce may consider is custody. By law, a biological parent is the default sole legal custodial and residential parent in Ohio. This means that same-gender partners who are not the biological parent of the child or who have not adopted the child may face tougher custody disputes.

Other considerations for same-gender couples with children include the amount of child support, if any, as well as legal and physical child custody.

4. Spousal Support

The longer a same-gender marriage lasted, the more likely a partner will have to pay spousal support. Thus, disputes about the marriage date may affect the amount of spousal support you are required to pay or receive. Depending on the time between your commitment ceremony and legal marriage, spousal support could be a complex issue and is best handled with a lawyer.

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