Possible Supreme Court Ruling Could Leave Pennsylvania Same-Sex Couples in Tricky Legal Situation If Divorcing; West Chester Divorce Lawyer Explains Possibilities

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Many observers believe that, in dual same-sex marriage cases heard this month, the U.S. Supreme Court will strike down DOMA but stop short of declaring marriage a fundamental right for same-sex couples in all 50 states. That could leave same-sex couples who marry in New York or other states and live in Pennsylvania, where the unions are not recognized, in a continuing difficult spot if they ever need to divorce, explains West Chester divorce lawyer Joshua Janis.

"It is wrong for a state to effectively force a couple to remain married because of opposition to their marriage even existing," said West Chester divorce lawyer Joshua Janis.

A possible ruling in the U.S. Supreme Court could leave Pennsylvania same-sex couples in a difficult and unclear legal position should they ever need to divorce, said West Chester divorce attorney Joshua Janis, of the Ciccarelli Law Offices.

"Under many likely scenarios, Pennsylvania gay and lesbian couples could get married in another state, move back to their home state and be unable to end their marriage if it becomes necessary," Janis said.

In the United States v. Windsor case (U.S. Sup. Ct. Docket No. 12-307), the Court may strike down Section 3 of the federal Defense of Marriage Act, finding the federal government may not discriminate against legally married couples for benefits.

However, in the Hollingsworth v. Perry case (U.S. Sup. Ct. Docket No. 12-144), over California's marriage ban, the Court may not go so far as to recognize a fundamental right for same-sex couples, limiting any impact of a decision to California in most scenarios.

Standing, or the right to bring a lawsuit was a significant issue in the case. The legality of the marriage ban (often called "Proposition 8," because of its position on the 2008 ballot when it passed) was advocated not by the State of California, which refused to defend the ban, but by the ban's supporters and sponsors. Such an arrangement is irregular, and, according to Court transcripts, some justices asked pointed questions of whether it was permissible under Article III of the Constitution.

According to Court transcripts, Justice Anthony Kennedy, the Court's frequent "swing voter," asked several question indicating skepticism about whether it was proper for the Court to be hearing the matter at all. Even if there were four votes on the Court to declare marriage a national right and four declining to do so, Kennedy could decline to take either side, and there would be no decision.

If there is no decision, or the Court declines to rule due to a procedural matter, the decision by U.S. Court of Appeals, Ninth Circuit, will stand and, most likely, apply only to California.

Pennsylvania does not presently recognize any kind of legal union between loving same-sex couples, including civil unions, for state law purposes. If a Pennsylvania same-sex couple gets married in the neighboring state of New York or Maryland, both of which recognize such unions, and return to the Commonwealth, the marriage is not recognized for any purpose under state law. This is because a 1996 revision of Pennsylvania law defined marriage as between "one man and one women," excluding gay and lesbian couples.

Marriage recognition excludes same-sex couples from many rights under state law during the marriage. But it also may affect the ability to end the marriage. In 2010, a Pennsylvania court in Berks County refused to recognize a marriage between two people of the same sex who were legally married in Massachusetts for the purposes of a divorce, meaning the couple could not get divorced in their home state of Pennsylvania (Kern v. Taney, Court of Common Pleas Docket No. 09-10738).

"Divorce is a very real necessity for all married couples," Janis said. "Whether it's because one partner left the other, there's been domestic violence, fraud, or one partner has become incapacitated, it's very important that there always be an option to legally end a marriage. If same-sex marriages continue to go unrecognized in the Commonwealth, gay and lesbian couples will not have this important legal option."

If the current situation stands, which is likely unless the Court makes a sweeping ruling recognizing a right to marry, gay and lesbian couples in Pennsylvania married in other states may have to seek out legal resolution in the state in which they married, Janis said. A couple in Chester County may not be able to hire a West Chester divorce attorney — they would be required to handle all legal matters in another location, and may even have to move there to meet residency requirements. Otherwise, they may be stuck in their marriage.

"The current situation is untenable for same-sex couples in states like Pennsylvania that do not recognize same-sex marriage," Janis said. "It is wrong for a state to effectively force a couple to remain married because of opposition to their marriage even existing. If the Supreme Court doesn't move on this, then the Commonwealth of Pennsylvania should."

Joshua Janis, of the Ciccarelli Law Offices, is a West Chester family lawyer who assists all residents of Southeastern Pennsylvania, including same-sex couples, with their legal needs, including divorce, child custody, child support and adoption.

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