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Domestic Relations in the New Era of Marriage Equality

March 3, 2015

By Kathleen M. Tana

The year 2014 will be remembered as a watershed year for same sex couples in the Commonwealth of Pennsylvania. In May 2014, U.S. District Court Judge John E. Jones, III, issued a decision in the case of Whitewood v. Wolf, striking down as unconstitutional Pennsylvania’s Defense of Marriage Act. This landmark decision directed the Commonwealth of Pennsylvania to allow same-sex couples to marry and to recognize same-sex marriages from other states.

In his ruling, Judge Jones commented on the injustice of Pennsylvania’s marriage laws, linking them to long-rejected segregation laws of the “separate but equal” era: “We are a better people than what these laws represent and it is time to discard them into the ash heap of history.”

These are wonderful sentiments, but they do not answer the practical questions that now arise in Pennsylvania’s new era of marriage equality. The following lists just a sampling of the new questions that will be answered as Pennsylvania moves through its first full year of marriage equality. 

First, same-sex couples who were married before May 20, 2014 in a jurisdiction where their marriage was legally recognized now have a legal marriage in Pennsylvania. There is no need to do anything further – Pennsylvania now recognizes that marriage as valid.  

Of course, having achieved “married” status, same-sex couples now have all the rights, privileges and obligations of any other married couple in Pennsylvania. There are some issues to be particularly aware of, especially where the couple has been together for a long time and have had their assets and finances set up separately. The now-married couple now must file a joint tax return (state and federal); their real property can be re-titled as joint tenants by the entirety; and each spouse can be added to the medical benefits of the other. 

Second, if the married same-sex couple separates, they will go through the divorce process. One spouse may have to pay alimony and/or spousal support to the other, and any property acquired during the marriage may be subject to equitable distribution.

For these reasons, long-term same-sex couples seeking to marry may wish to consider the benefits of a pre-nuptial agreement. These documents can determine all of the rights and responsibilities of each spouse before the marriage, and can pre-determine property distribution and allocation of assets in the event of either death or divorce.

Newly-married same-sex couples may assume that because their marriage now is legally recognized, they no longer need to go through the adoption procedure regarding their children. This is not correct, for several reasons. For example, not every state recognizes same-sex marriage. In order to guarantee legal recognition for both parents of a child (in Pennsylvania and in any other place where the family may live), the best course of action is to go through the adoption process. An adoption decree is an Order of court and must be recognized in every state -- even those that do not recognize marriage equality.

Finally, the issue of paternity rights as applied to same-sex families is still evolving. Pennsylvania law recognizes a “presumption of paternity (legitimacy),” which states that a child born to a married couple is the child of both parents. This should mean that a child born in Pennsylvania to a same-sex couple will automatically have both parents’ names listed on the birth certificate without the need for an adoption. It is as yet unclear, however, exactly how the state’s Department of Health will handle this issue. Thus, for the reasons noted above, the “second parent” adoption process provides the best insurance for all family members until marriage equality is recognized in every state. 

Pennsylvania’s recognition of marriage equality for same-sex couples is a wonderful, long-overdue development in the law. But as with any other legal evolution, there are sure to be bumps in the road moving forward. If you have any questions about navigating this new road, please call any of the Domestic Relations attorneys at Willig, Williams & Davidson.

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