The Latest on Same-Sex Marriage

On June 26, 2015, the United States became the 21st country to legalize same-sex marriage nationwide after the United States Supreme Court’s ruling in Obergefell v. Hodges. This decision struck down the remaining marriage bans still in place in 13 states (Arkansas, Georgia, Kentucky, Michigan, Missouri, Mississippi, Nebraska, North Dakota, South Dakota, Texas, Ohio, and Tennessee).

In Obergefell v. Hodges, there were two questions placed before the United States Supreme Court. The first question asked whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex. Essentially asking if a state could ban same-sex marriage. The second question asked if the Fourteenth Amendment required a state to recognize a marriage between two people of the same-sex when that marriage was lawfully licensed and performed out of state.

Justice Kennedy delivered the ruling, explaining that the United States Constitution grants all persons the liberty to “define and express their identity”. He reasoned that this is what the plaintiffs sought to do by marrying a person of the same sex and then having the marriage recognized as legal, in the same manner a marriage between two people of the opposite sex is recognized. The majority opinion concluded that precluding same-sex couples from marrying conflicts with the fundamental right to marry and further harms same-sex couples by denying them not only the status of marriage but also the “constellation of benefits” that are linked to marriage.

Married same-sex couples now enjoy the same legal rights as married opposite-sex couples nationwide and are recognized on official documents such as birth and death certificates. This is a welcomed change for same-sex couples who may have been unable to marry or divorce in their home state prior to this decision. States vary their divorce laws in several ways including: residency requirements, grounds for a no-fault or at-fault divorce, rules for filing for divorce, as well as laws of property distribution, child and spousal support, and child custody after divorce.

Before the nationwide legalization of same-sex marriage, a same-sex couple may have had to travel to another state to legally marry or divorce. Depending on the divorce laws of each state, this process could be even more difficult (i.e. residency requirements). Now that same-sex marriage is legal in all 50 states, couples have the ability to divorce under the laws of any state that they wish to get a divorce in.

As each states’ divorce requirements vary, one must check the requirements of the state in which they wish to file for divorce. California is a “no-fault” divorce state and a couple can divorce when one party declares they have “irreconcilable differences” with their spouse, there is no need or ability to designate a “guilty” or “non-guilty” party. The divorce process takes a minimum of six months from the date the person filing formally tells the other party that the divorce petition has been filed. Residency requirements for a couple to obtain a divorce in California require that at least one spouse has lived in the state for the last six months and lived has in the county where they are filing for the last three months.

At Mello & Pickering, LLP, we can assist you with a dissolution matter, whether you are in a same-sex marriage or an opposite-sex marriage. Call our office at (408) 288-7800 to set up a consultation. We would be happy to discuss these new court decisions with you, as well as how they may pertain to your particular situation.