Obergefell v Hodges, was the landmark U.S. Supreme Court decision that overturned the Michigan prohibition against same sex marriage. As a result, same sex couples who wish to marry in Michigan, may do so. Michigan must recognize same sex marriages that were solemnized in other states or in Washington D.C., jurisdictions that had previously validated same sex marriages. Same sex marriages are now valid in all 50 states. Now that same sex marriage is recognized, these couples may also divorce.
As often happens when there is a huge shift in the law, many questions remain that will need to be answered. This will take time. Examples are:
What is the date of the marriage? As an example, what if the couple married in New York, a state where same sex marriage has been valid before Obergefell, three years ago. They then moved to Michigan. Is the date of marriage the date that Michigan recognized same sex marriages (the date of the decision; June 26, 2015) or the date the couple married in New York? The Supreme Court did not address this issue in the Obergefell decision.
Why is the date of marriage important? In Michigan, the property that the couple received during the marriage or by virtue of the marriage is divided in a divorce.
What if the couple had been living together in Michigan (or another state) for many years before the Obergefell decision? Since the couple could not marry before June 26, 2015 (unless they were one of the 300 couples who married immediately after the DeBoer decision which ultimately helped laid the ground work for Obergefell), should property the couple accumulated during the time they lived together before the marriage be divided?
Are children adopted by one of the couple or born to one of the couple, the children of the marriage? The answer depends on when the child was born or adopted in relation to the date of the marriage. In Michigan, children born during the marriage are presumed the children of both parents. Due to the unanswered questions listed above, you need to proceed with great care. Before Obergefell, same sex couples could not legally adopt children. Therefore, children born to or adopted before the marriage, are probably the children of just one member of the couple. The couple may still have to undergo adoption proceedings to have both parents become the parent of the children.
Couples who had children before their marriage should confer with an attorney regarding settling the relationship of between both parents and the child. Couples who moved to Michigan from other states, particularly states where same sex marriages were invalid and who have questions about the parentage of their children, should also confer with a lawyer.
Couples who have children after their marriage, should still proceed with caution. It may be necessary for the non-biological parent to file an affidavit of parentage, to be on the safe side. Care should be taken to list both parents on the birth certificate.
If the couple should divorce, those children who have both members of the couple as parents will have their custody and parenting time determined and will receive or pay child support.
There are many implications and unanswered questions in other areas of the law; estate planning, employment; tax and property law. There is also the task of changing the over 130 statutes in Michigan that reference “husband and wife” or “men and women.” The civil rights laws in Michigan do not offer protection to same sex couples. As an example, a same sex couple marries. One employed partner of the couple notifies their employer that he or she would like to add their spouse to their benefits entitlement. The employer can still fire the employee because the employer does not wish to employ gay people.
Attorneys and lay people are working on considering all the changes that are needed in the law and all the ways to address unanswered questions. Work continues to address the lack of civil rights protection. This will take time as we all work through it.