By Robert L. Mues   |   September 10th, 2016

New Hampshire Case Said to Set Precedent for Same-Sex Couples Upon Divorce, But is Ohio Law Already Set Up for Courts to Reach Similar Decisions?

same-sex couples cohabitation divorceThe Supreme Court of New Hampshire recently held that courts may consider premarital cohabitation when considering the division of a same-sex couple’s assets.  In the Matter of Deborah Munson and Coral Beal, the New Hampshire court was faced with a divorce and division of assets of a same-sex couple who lived together for 15 years before a civil union was held, followed by a marriage three years later. During the 15 years before the marriage, the couple essentially acted and functioned as a married couple, both socially and financially.  However, the trial court awarded Beal limited alimony and a small percent of the marital estate based upon the short duration of the marriage. Upon appeal, her attorneys argued that the district court should have considered the 15 years the couple cohabitated prior to the marriage.

In its decision, the New Hampshire Supreme Court agreed explaining that the law of the state provided a “catch-all” provision allowing the court to consider “any other factor” it deems relevant when dividing the marital assets.  Therefore, the Court held that premarital cohabitation could be considered but “is not unique to same-sex couples,” and will apply to “all divorce proceedings.”

In looking at how and if New Hampshire’s decision will impact other states, it seems that others may follow suit allowing the time a couple lives together pre-marriage to be considered under similar “catch-all” provisions.

In Ohio, Revised Code § 3105.171(F)(10) provides discretion stating that in dividing marital property, the court can consider “any other factor” that it “expressly finds to be relevant and equitable.” However, in addition to its catch-all provision, Ohio law seems to take it one step further with a statute indicating that it is possible for the court to determine that the “marriage” started when the parties began cohabitating.

Ohio Revised Code § 3105.171(A)(2)(b) states in part that, “the court may select dates that it considers equitable in determining marital property.  If the court selects dates that it considers equitable in determining marital property, ‘during the marriage’ means the period of time between those dates selected and specified by the court.”

This somewhat unique statutory provision already provides Ohio courts with the flexibility to hold that a “marriage” could actually begin before it is legal in the eyes of the state.  While it does not appear that Ohio has as of yet applied this law in the context of a same-sex couple upon divorce, courts have considered it in marriages between a man and woman.

At least two districts in Ohio have found that 3105.171(A)(2)(b) gives the court discretion to choose an alternate start date of the marriage for equitable purposes.  Both the 8th and 3rd Districts allowed premarital cohabitation to be considered where the couples held themselves out as married couples both socially and economically before their unions became legal.  Nonetheless, the 9th District has come down stating that allowing the court to do so, essentially resurrects the doctrine of common law marriage which was abolished by the legislature in 1991.  As a result, that District has refused to consider premarital cohabitation in dividing the marital estate.

Will Ohio Courts Rule On Same-Sex Couples Premarital Cohabitation and Divorce?

Because a split exists and the Ohio Supreme Court has not ruled on the matter, it is unclear if Ohio will follow in New Hampshire’s footsteps. That being said, it seems that the foundation to do so is in place and is even stronger than that in New Hampshire, so it is likely only a matter of time. We will keep you posted on this area of in Ohio law pertaining to Same-Sex couples and Divorce, as it continues to develop!

© 2016 – 2018, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

Same-Sex Couples: Premarital Cohabitation Assets and Divorce

Leave a Reply

%d bloggers like this:
enerator" content="CuteHTML">