Category Archives: Marriage

Same-Sex Marriage Bans Come Tumbling Down

ringsYesterday, the United States Supreme Court chose to do nothing, which, ironically, resulted in the most widespread impact on the marriage equality movement to date. The Supreme Court’s inaction – its decision not to review lower court rulings striking down same-sex marriage bans – effectively added 12 more states to the marriage equality column.

What Happened? Here’s What the Court Didn’t Do

Three separate federal appeals courts (for the Fourth, the Seventh and the Tenth circuits) struck down state marriage bans from five different states – Utah, Oklahoma, Virginia, Wisconsin and Indiana. These states appealed the decisions to the Supreme Court (or SCOTUS). Yesterday, SCOTUS denied review of these petitions, meaning it chose not to hear the states’ appeals. In doing so, the Supreme Court left the lower court rulings in place. As a result, the same-sex marriage bans in these five states are no longer valid, and same-sex couples in Utah, Oklahoma, Virginia, Wisconsin and Indiana are now free to marry.

The Court’s inaction will also affect a few additional states. Because the Justices let the lower court rulings stand, those decisions now become law of the land for other states that fall under the Fourth (Virginia), Seventh (Indiana and Wisconsin) and Tenth (Utah and Oklahoma) Circuits. This means that six other states whose same-sex marriage bans are still on the books will soon have to admit defeat, as their bans are now effectively dead. These states include West Virginia, North Carolina, South Carolina, Kansas, Colorado (but see below) and Wyoming.

Colorado’s AG Follows the Court’s Lead

Soon after the Court’s decision, Colorado Attorney General John Suthers, who previously vowed to defend the state’s same-sex marriage ban, announced he would no longer do so. “There are no remaining legal requirements that prevent same-sex couples from marrying in Colorado,” Suthers said in a statement today. He also indicated that all 64 of Colorado’s county clerks are now legally required to issue marriage licenses to same-sex couples requesting them.

The Ninth Circuit Struck Down Two More Bans Today

And just today, the San Francisco-based U.S. Court of Appeals for the Ninth Circuit struck down bans on same-sex marriage in Nevada and Idaho. This ruling is expected to control pending challenges to bans in Alaska, Arizona and Montana.

What a Difference a Year Makes – What’s the Roundup?

  • This time last year, same-sex marriage was legal in 13 states and the District of Columbia.
  • As of yesterday, same-sex marriage was legal in 24 states, plus D.C. (California, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington and Wisconsin).
  • As of today, that number grew to 27, plus D.C. – adding Colorado, Idaho and Nevada.
  • Eight more states (West Virginia, North Carolina, South Carolina, Kansas, Wyoming, Alaska, Arizona and Montana) will likely be next as a result of yesterday’s Supreme Court ruling and the Ninth Circuit’s decision today – the total number could soon be 35 marriage equality states, plus D.C.

 

Same-Sex Marriage is on Hold in Utah

ringsOn Friday, December 20, 2013, U.S. District Judge Robert Shelby struck down Utah’s ban on same-sex marriage, saying it violates the equal protection rights of gay and lesbian couples. As news of the ruling broke, hundreds of same-sex couples from around the state began requesting marriage licenses.

According to The Huffington Post, county clerks in Utah issued more than 1225 marriage licenses between Friday December 20 and Thursday December 26; at least 74 percent or 905 of those licenses were issued to gay and lesbian couples. The Salt Lake County Clerk’s Office broke its record of 85 marriage licenses in one day by issuing 353 licenses on Monday, December 23.

The State of Utah requested a temporary stay of the ruling, which would prevent any further same-sex marriages from taking place until the U.S. Court of Appeals for the Tenth Circuit has had a chance to rule on Utah’s appeal. However, Judge Shelby denied that request. As a result, same-sex weddings will continue to take place in Utah pending the appeal, unless the U.S. Supreme Court intervenes.

Utah state officials have indicated that they will ask the United States Supreme Court (as early as today) to stay the District Court’s ruling. It’s unclear if the state will ask the Supreme Court for any additional relief at this point.

The request will go to Justice Sonia Sotomayor, who handles emergency requests from the region that includes Utah. Justice Sotomayor has the authority to decide this issue on her own or ask the other Justices to weigh in. We’ll be sure to update our site as soon as we learn more.

UPDATE: On January 6, 2014, the U.S. Supreme Court granted the State of Utah’s request for a stay of the District Court’s ruling. No further same-sex marriages will be performed in Utah pending the appeal. The federal appeals panel plans to expedite it’s review of the case, so many hope to see a resolution soon.

 

 

Adultery and Divorce: A Closer Look at the Impact

Onliine AffairThe media loves an ugly divorce. You rarely hear about the 95% of divorce cases that settle out of court or resolve through mediation or the collaborative divorce process. Instead, most people focus on the remaining 5% of cases that involve a full-blown court trial and possibly nasty allegations.

Based on what you’ve read or heard, you may assume adultery is the leading cause of divorce. But most divorcing spouses actually cite “irreconcilable differences,” which is just is a fancy way of saying that a couple can’t get along anymore, and there’s no reasonable chance of getting back together.

No-fault Versus Fault Divorce

“Irreconcilable differences” (also referred to as “irremediable breakdown”) is the only ground available for a “no-fault” divorce – that is, a blameless divorce, one where neither spouse claims that the other’s misconduct (such as adultery) caused the split. Not surprisingly, no-fault divorces tend to be cheaper, less contentious and less emotionally draining for the parties and their children, which probably accounts for much of their popularity.

Today, all states allow no-fault divorces or a divorce based on separation, and in several states, no-fault is the only option. Some no-fault states, such as California, go so far as to prohibit divorcing spouses from testifying or inquiring about adultery (unless a judge finds that it’s relevant to a limited issue in the case.)

See the Divorce Basics section on DivorceNet.com to learn more about the grounds for divorce in your state.

Some states still allow “fault” divorces, which are based on marital misconduct, such as adultery, addiction or abandonment. In most cases, fault doesn’t actually play much of a role in the divorce proceeding itself. But in some states, adultery may affect a judge’s decisions about alimony and/or property division, particularly where the cheating spouse wasted marital funds on an affair (for example, buying gifts or paying for vacations). In these cases, a judge can order the cheating spouse to pay more spousal support or reimburse the “innocent” one for wasted funds.

To learn more about what role adultery may play in a divorce in your state, see the Adultery and Divorce section on DivorceNet.com.

Adultery in the News

Although adultery doesn’t typically play a major role in the legal outcomes of most divorces in the U.S., it makes for flashy headlines. Consider all the media attention the website www.AshleyMadison.com has garnered lately. AshleyMadison (tagline: “Life is Short. Have an Affair.”) is a dating site for married people. The company describes itself as “the most famous name in infidelity and married dating” with over 23,010,000 members.

In The United States of Adultery, Huffington Post revealed the top cities for unfaithful spouses (based on AshleyMadison.com’s membership data). The top ten locations (with an added description of applicable grounds for divorce) are:

  1. Washington, D.C.  (No-fault only)
  2. Houston Texas (No-fault and fault grounds)
  3. Miami, Florida (No-fault only)
  4. Pittsburgh, Pennsylvania (No-fault and fault grounds)
  5. Los Angeles, California (No-fault only)
  6. Oklahoma City, Oklahoma (No-fault and fault grounds)
  7. Phoenix, Arizona (No-fault only – unless couple entered into a covenant marriage.)
  8. New York, New York (No-fault and fault grounds)
  9. Chicago, Illinois (No-fault and fault grounds)
  10. Boston, Massachusetts (No-fault and fault grounds)

Obviously, these rankings aren’t really reliable since the information is based strictly on AshleyMadison’s membership and doesn’t capture the percentage of cheaters who find partners the “old-fashioned” ways, but Huffpo thought it was newsworthy and had no issue relying on AshleyMadison as a source.

Aside from reports about a recent alienation of affection lawsuit filed against AshleyMadison, I wasn’t able to find much negative press about the company. It’s interesting to consider what the website’s popularity among members and the media means. Have we become more accustomed to (and accepting of) adultery? Huffpo reports (from sources Gallup and USA Today) that 54% of Americans say they know someone who has an unfaithful spouse, and 37% of currently married adults say they would not get divorced if their spouse had an affair.

Does the nationwide shift to no-fault divorce also reflect today’s attitudes about adultery? Much of the shift is due to states’ desires to avoid wasting limited court resources on largely irrelevant issues, like whether one spouse cheated. But it may also reflect the fact that fewer divorcing spouses want to publicly hash out the details of what went wrong in their marriage and pay hefty attorneys’ fees proving or negating something like an affair. Whatever the reason, overall, it seems the no-fault model for divorce is proving to be the best option for those involved.

Go to www.divorcenet.com for more information on family law and divorce.

Hawaii Legalizes Same-Sex Marriage

ringsEarlier today, Hawaii’s Governor Neil Abercrombie approved a bill legalizing same-sex marriage in the state. After a week-long hearing, the Hawaii Senate passed the measure yesterday and sent it to the Governor for his signature. Same-sex weddings will begin in the Aloha State on December 2, 2013.

Although the Illinois Senate approved a same-sex marriage bill on November 6, 2013, Governor Pat Quinn is not scheduled to sign that bill into law until November 20, 2013. Since Hawaii’s Governor acted so quickly and, in essence, beat Illinois to the final approval punch, Hawaii is now being hailed by some as the 15th state to legalize same-sex marriage (even though Illinois held that title just last week.) Same-sex weddings should begin taking place in Illinois on June 1, 2014.

To learn more about same-sex marriage and other LGBT issues, go to Nolo’s LGBT Law center.

 

Illinois Lawmakers Vote for Same-Sex Marriage

ringsIllinois is set to become the 15th state to legalize same-sex marriage. Today, the Illinois Senate approved a bill that would legalize same-sex marriage across the state. The bill must go to Governor Pat Quinn, who has already promised to sign it into law. Same-sex weddings will take place in Illinois starting in June 2014.

Hawaii is poised to follow suit as we wait for the Hawaii House of Representatives to vote on a same-sex marriage bill, which could happen any day now.

To learn more about same-sex marriage and other LGBT issues, go to Nolo’s LGBT Law center.

 

Oregon Will Recognize Out-of-State Same-Sex Marriages

The Oregon Department of Justice has ruled that all state agencies in Oregon must recognize valid same-sex marriages performed in other jurisdictions, even though same-sex couples cannot get married within the state.

More About the Ruling

Oregon Deputy Attorney General Mary Williams indicated that the ruling was based on the U.S. Supreme Court’s U.S. v. Windsor decision, which struck down a key provision of the federal Defense of Marriage Act. She wrote that not recognizing marriages conducted in other jurisdictions after the Supreme Court’s decision “would likely violate the federal Constitution.”

The Department of Justice decided that it would be legally indefensible for Oregon to recognize out-of-state marriages from opposite-sex couples while refusing to recognize those from same-sex couples.

How Things Have Changed in Oregon

In response to the ruling, Michael Jordan, the chief operating officer for the state government, sent a memo to all state agency directors advising them of the new policy. Oregon agencies must now recognize valid same-sex marriages performed in other states and countries for the purposes of administering state programs and extending benefits, including medical benefits and tax exemptions.

The ruling actually has little impact on the tax status of same-sex couples in Oregon because the 2007 Oregon Family Fairness Act allowed Oregon domestic partners to file their taxes jointly, as if they were married.

Now, however, there is one less step involved – same-sex married couples don’t need to register as domestic partners when they move to Oregon. The same goes for same-sex couples that live in Oregon and go across state lines to get married. All such marriages will now be recognized by the state.

The decision changes things for same-sex married couples that live other states but file Oregon taxes because they own real estate or have businesses in Oregon. Same-sex married couples aren’t allowed to register as domestic partners in Oregon if they don’t reside there, but now they will receive marriage benefits on their state taxes, which they couldn’t get before the ruling.

What’s Next for Oregon?

There is still a constitutional ban on same-sex marriage in Oregon – the Oregon constitution defines marriage as a union between a man and a woman – so same-sex couples can’t get married in the state. But the Justice Department’s ruling seems to place Oregon’s constitutional ban on shaky ground, and opponents of the ban hope to have it overturned with a ballot measure in 2014. We’ll keep a close eye on Oregon and update our site as the same-sex marriage laws continue to develop over the next year.

To learn more about same-sex marriage and other LGBT issues, go to Nolo’s LGBT Law center.

Christie Drops his Appeal – New Jersey is the 14th State to Legalize Same-Sex Marriage

ringsNew Jersey Same-Sex Marriages Begin Today

The first-ever same-sex marriages in New Jersey took place early this morning – 12:01 a.m. to be exact – when mayors from around the state began officiating marriages for same-sex couples. These marriages conclude the dramatic legal battle for same-sex marriage in New Jersey.

Background

In 2012, Republican Governor Chris Christie vetoed a bill passed by the state legislature that would have legalized same-sex marriage. Same-sex couples in New Jersey were left with civil unions, which provide most of the rights, benefits and responsibilities of marriage conferred by the state, but none of the federal benefits granted to opposite-sex married couples.

In June 2013, the United States Supreme Court issued its ruling in U.S. v Windsor, which struck down a key section of the federal Defense of Marriage Act. In doing so, the Court declared that the federal government must provide the same benefits to same-sex married couples as it does to heterosexual married couples.

Then, on September 27, 2013, Judge Mary C. Jacobson of the State Superior Court in Mercer County, New Jersey used the Windsor decision as the legal underpinning for her ruling in favor of same-sex couples challenging New Jersey’s civil union law. She found that the state’s ban on same-sex marriage deprived same-sex couples from receiving federal benefits and “is currently harming same-sex couples in New Jersey in a wide range of contexts.” She ruled that the state must allow same-sex couples to marry, because not doing so deprives them of rights that were guaranteed by the United States Supreme Court in June.

Judge Jacobson stated that the Windsor decision demanded a change in New Jersey. Under her order, same-sex marriages were set to begin today, October 21, 2013.

This marks the first time a court has struck down a state’s refusal to legalize same-sex marriage as a direct result of the U.S. Supreme Court’s ruling. With similar lawsuits pending in several states, this could signal other successful challenges across the country.

Governor Chris Christie Attempts to Intervene

Immediately after Jacobsen’s ruling, Governor Christie filed an appeal of her decision and sought an emergency stay of Jacobson’s order pending the appeal. However, on Friday, October 18, the New Jersey Supreme Court denied Christie’s request to put same-sex marriages on hold.

In a unanimous ruling, the New Jersey Supreme Court suggested that if the appeal were to come before the Court in January 2014, it would strike down the same-sex marriage ban. “The state has advanced a number of arguments, but none of them overcome this reality: Same-sex couples who cannot marry are not treated equally under the law today,” the Court stated. “The harm to them is real, not abstract or speculative . . . we can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds,” the justices said.

In light of the Court’s ruling, two important events occurred today: The very first same-sex marriages were officiated in New Jersey, and Governor Christie withdrew the state’s appeal, which means same-sex marriage is now the law of the land in New Jersey.

Christie’s office issued the following statement:

“Although the Governor strongly disagrees with the Court substituting its judgment for the constitutional process of the elected branches or a vote of the people, the Court has now spoken clearly as to their view of the New Jersey Constitution and, therefore, same-sex marriage is the law.” The statement also assured New Jersey residents that the Governor’s office will implement the law: “The Governor will do his constitutional duty and ensure his Administration enforces the law as dictated by the New Jersey Supreme Court.”

To learn more about same-sex marriage and other LGBT issues, go to Nolo’s LGBT Law center.

The Wedding Bells Will Ring – Gay Marriage to Resume in California

picture of marriage equalitySCOTUS delivered another much-anticipated marriage equality ruling today when it dismissed the California Prop. 8 case, Hollingsworth v. Perry, on a legal technicality. The court declined to determine the proposition’s constitutionality and instead ruled that Prop. 8 supporters (private citizens) lacked “standing” to appeal the lower court’s decision regarding the gay marriage ban.

A Little Background

In August 2010, United States District Court Judge Vaughn Walker (a federal judge) overturned Prop. 8 (the voter-approved ban on gay marriage) ruling that the ballot measure violated the Due Process and Equal Protection clauses of the U.S. Constitution. Judge Walker issued a statewide injunction against enforcement of Prop. 8, but also issued a stay (delay) of his own order pending appeal.

The Ninth Circuit Court of Appeals affirmed Judge Walker’s decision and kept the stay in place pending the Supreme Court’s review.

What Did SCOTUS Really Decide: What is Legal Standing?

The Supreme Court dismissed the Perry case because, it ruled, the proponents of Prop. 8 did not have “legal standing” to appeal the Ninth Circuit order where state officials, including the governor, refused to defend the law. Lack of standing means that the Prop. 8 supporters could not show they suffered a sufficient harm from the lower court’s decision to support their participation in the case.

Chief Justice John Roberts, writing for the majority, said that the Prop. 8 supporters had no “personal stake” in defending it, at least no more than other ordinary citizens of California. “It is not enough,” Roberts wrote, “that the party invoking the power of the court have a keen interest in the issue.” SCOTUS remanded the case to the Ninth Circuit.

What Happens Next: When Will Same-Sex Marriages Resume?

Although this decision has cleared the way for same-sex marriages to resume in California, they will not begin immediately. After the ruling, the Supreme Court clerk sent a letter to the Ninth Circuit Appeals Court saying that its formal judgment will not be issued for at least 25 days. It will then be up to the court of appeals to take care of a legal formality — lifting the stay of the injunction. Same-sex couples will not be able to marry until the Ninth Circuit confirms they’ve lifted the stay.

All of this could take a few weeks, but it looks like same-sex weddings could begin taking place in California as soon as July 2013.

In the meantime, California Governor Jerry Brown has directed all California county officials and court clerks to comply with Judge Walker’s injunction against the enforcement of Prop. 8 and issue marriage licenses as soon as the stay is lifted.

It’s been reported that Lieutenant Governor Gavin Newsom (one of the earliest and most prominent political proponents of same-sex marriage in California) believes gay marriage will resume in California within 30 days. And California Attorney General Kamala Harris told reporters, “As soon as they lift that stay, marriages are on . . . .the wedding bells will ring.”

California is the 13th state to recognize same-sex marriage. (See also Marriage Equality Update:  Ten and Counting)  For up-to-date information about same-sex marriage, domestic partnerships and civil unions, check out the LGBT Law center on Nolo.com.

SCOTUS Has Spoken: DOMA’s Definition of Marriage is Unconstitutional

picture of marriage equalityToday’s historic SCOTUS ruling marks a monumental step in the marriage equality movement. The Court’s decision in United States v. Windsor puts an end to the federal definition of marriage under the Defense of Marriage Act or “DOMA,” which limited marriage to a union between a man and a woman. Now, same-sex couples that are legally married in any of the 13 states that recognize gay marriage (or D.C.) are considered “married” in the federal government’s eyes, and can enjoy the same federal benefits that opposite-sex married couples do, including immigration status, Social Security benefits and federal tax benefits.

The DOMA case involved Edith Windsor and Thea Spyer, a lesbian couple that was married in Canada in 2007 – after being in a relationship for 40 years. When Spyer died in 2009, Windsor was forced to pay $363,053 in taxes on Spyer’s estate, which she would not have had to pay if she’d been Spyer’s husband. She argued that DOMA, which prevents her from being considered Spyer’s spouse for federal purposes, cost her $363,053.

In a 5-4 decision, with the majority opinion written by Justice Anthony Kennedy, SCOTUS found that the section of DOMA defining marriage as between a man and a woman violates the Equal Protection Clause and is therefore unconstitutional.

There are still some questions left to be answered, including whether the feds will recognize same-sex marriages based on the “place of celebration” – where the couple was married, or based on the “place of residence” – where the couple resides. For example, how will the feds treat the union of a same-sex couple that married legally in Rhode Island (place of celebration) but then moved to Texas (place of residence), where same-sex marriage is not recognized?

There is no clear answer at the moment, but some legal analysts suggest that because the federal government currently uses the place of celebration standard (not taking into account where a couple later resides) for most federal benefits, they will likely continue to do so. However, that question is reserved for another day. Right now, millions of Americans across the nation, both gay and straight, are cheering the demise of DOMA – described best, I think, by President Obama as “Righting the wrong . . . of discrimination enshrined in law.”

Next up:  Gay Marriage to Resume in California.

To learn more about the DOMA decision and how it may impact your right to federal benefits, check out The Supreme Court’s DOMA Decision on Nolo.com. 

Marriage Equality Update: Ten and Counting

picture of marriage equalityRhode Island is the Tenth State to Legalize Gay Marriage

With the May 2, 2013 passage of its same-sex marriage bill, Rhode Island became the tenth U.S. state to recognize gay marriage. The new law takes effect in Rhode Island on August 1, 2013, when same-sex marriage ceremonies will begin taking place.

As of the writing of this post, gay marriage is legal in 10 U.S. states – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, Vermont, and Washington – plus the District of Columbia.

More States are Following Suit: Delaware will Become the 11th

With all major polls now showing that a majority of Americans support same-sex marriage, other states are quickly following suit. Just today, the Delaware Senate voted to legalize gay marriage. The bill now goes to Democratic Governor Jack Markell, who has already promised to sign it.

On May 9, the Minnesota state House will vote on a same-sex marriage bill: Minnesota House Speaker Paul Thissen says he believes the Democratic majority has enough votes to pass the bill. A vote in Illinois may follow later this month. The Illinois state Senate has already passed the marriage equality bill, as has a House committee. If it gets approval in the full House vote, the bill goes to Illinois Governor Pat Quinn, who vowed to sign it.

And we’re very close to resolution on the landmark California Proposition 8 and DOMA cases, both of which were heard by the U.S. Supreme Court this past March.

What’s the Proposition 8 Case all About?

“Prop. 8” is the 2008 California ballot measure that effectively overturned the California Supreme Court’s ruling that same-sex couples have a constitutional right to marry. Prop. 8 amended the California Constitution to recognize only those marriages between a man and a woman.

In 2010, Chief U.S. District Judge Vaughn R. Walker overturned Prop. 8, finding that it discriminated against same-sex couples in violation of the Equal Protection Clause of the U.S. Constitution. The Ninth Circuit Court of Appeals agreed and upheld Judge Walker’s decision, but Prop. 8 supporters appealed the ruling. On March 26, 2013, the Supreme Court, or SCOTUS, heard oral argument on the Prop. 8 case and took it under submission.

In a nutshell, the Supremes are reviewing a 9th Circuit decision that addressed the freedom to marry in California. SCOTUS may uphold (or overturn) the 9th Circuit’s decision as it applies to California, or rule more broadly and issue a decision that has far-reaching effects on same-sex marriage recognition across the country.

What are the Issues in the DOMA case?

The federal Defense of Marriage Act or “DOMA” was enacted by Congress in 1996 to nullify same-sex marriage for purposes of federal law. DOMA defines marriage as a legal union between a man and a woman, and prohibits all same-sex married couples from receiving federal benefits opposite-sex married couples receive, such as Social Security benefits, tax benefits and immigration status. SCOTUS heard oral argument regarding the challenge to DOMA on March 27, 2013 – the day after the Prop. 8 oral argument took place.

If the Supremes strike down DOMA’s definition of marriage, same-sex married couples will be entitled to the same federal benefits opposite-sex couples receive.

There’s no way to predict SCOTUS’s rulings, but stay tuned – decisions in both cases are expected as early as June 2013. However these cases play out, it’s clear that the marriage equality movement is gaining widespread support and legal validation across the country.