Breaking Up Is Hard To Do – Especially For Same Sex Couples In Pennsylvania

While the Supreme Court debates the constitutionality of the Defense of Marriage Act (DOMA), the law that gives states the right not to recognize same sex marriage or unions entered into in other states, lower courts across the country are facing a growing number of same sex couples seeking to dissolve their unions. In states that do not recognize same sex marriages, such as Pennsylvania, same sex divorce is proving to be challenging, if not impossible.

Not being able to legally separate or divorce can wreak havoc on these couples’ personal finances. It also usually means that one of the parties loses control over assets, such a business or financial account, that he or she help build during the union.

In Pennsylvania, as in most other states that do not recognize same-sex unions, there is simply no clear path for same sex couples to “divorce” or separate. It is a legal grey area that lawyers are trying to navigate. Forget “thinking outside the box.” When DOMA is involved, it’s necessary to throw out the box and build something new.


About DOMA:
The Defense of Marriage Act (DOMA), enacted in 1996, prevents the federal government from recognizing same-sex marriages and allows each state to refuse recognition of same sex marriages performed in other states.  The provision of DOMA forbidding the federal government from recognizing same sex marriages has been found unconstitutional in eight federal courts, including two federal appeals courts. Five of these cases are pending review by the Supreme Court.  This includes United States v. Windsor – a case much in the news these days.

Case In Point: How Creative Thinking Helped One Cooley & Handy Client End Her Civil Union

Our client and her partner lived in Pennsylvania, but traveled to New Jersey to enter into a civil union, the legal equivalent of a marriage for same sex couples. New Jersey permits non-residents to be legally joined there with just a three-day waiting period for a marriage or civil union license. Unfortunately, to divorce in New Jersey, one spouse must have lived in the state for at least one year prior to the divorce. Because neither party wanted to move to New Jersey for a year, the case needed to be resolved in Pennsylvania. During the course of the marriage, the couple bought a house, started a business and had children through in-vitro fertilization. There were debt, asset, support and other issues to be legally addressed. The question was: how?

In an attempt to dissolve the union, our client’s partner filed three civil lawsuits, including two partition actions, one for a house and one for a car, and a lawsuit seeking to have the court declare the civil union ended. Those claims, however, were insufficient to permit our client to assert her full equitable interest in those assets, as well assets separately titled in the partner’s name, including a business and retirement accounts, or to assert a claim for spousal support.

To overcome these problems, Cooley & Handy relied on a Pennsylvania legal decision from 1983 that was aimed at protecting unmarried heterosexual couples. In Knauer v. Knauer, an unmarried woman took her ex-boyfriend to court for support. She won her case based on her claim that the parties had entered into a verbal agreement – an oral contract – that she would receive financial support if they ever ended their relationship. The court in that case held that such an agreement was enforceable as a contract even if the parties were not married.

With that precedent mind, Cooley & Handy asserted several counter-claims to the partner’s civil lawsuits, including a claim for equitable distribution of the assets that the parties acquired during the marriage and a claim for support. We argued that by going to New Jersey and entering into a civil union, the couple was, in effect, entering into an oral partnership contract just as the couple had done in Knauer v. Knauer. We further argued that the terms of the contract were those imposed by New Jersey law, including the right to seek support, alimony and the equitable distribution of assets acquired during the civil union or partnership.

Thus, the theory of the case was that while Pennsylvania courts may not recognize the religious or ceremonial union and apply Pennsylvania divorce law to same-sex unions, Pennsylvania courts should, based on Knauer v. Knauer, at least recognize the contractual terms of the relationship and enforce the terms of the contract under civil law and rules.

This creative strategy gave our client the leverage she needed to successfully negotiate a satisfactory financial settlement of the overall case. Until DOMA is overturned, divorce attorneys need to think creatively and stretch the law to help their clients in a same sex relationship.

UPDATE:  DOMA was overturned by the Supreme Court on June 26, 2013

Cooley & Handy are Divorce Lawyers and Personal Injury Attorneys serving individuals and families in Bucks County, Montgomery County and Philadelphia. We help our clients navigate the ever changing and always challenging legal system with knowledge, experience and a healthy dose of creative problem solving. This newsletter shines a light on some of our latest cases and news of note.