Family law in limbo after gay-marriage rulings

Pennsylvania in forefront of debate over this hot-button issue

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Family law attorneys in Pennsylvania find themselves in a challenging position -- now that the state has emerged in the forefront of the debate over same-sex marriage sweeping the country.

The possible far-reaching effects of recent legal challenges to current state law, which defines marriage as between a man and women, have created what one family law attorney described as "chaos."

In June, the U.S. Supreme Court ruled that the federal Defense of Marriage Act, with its provision defining marriage as between a man and woman, was unconstitutional. The 5-4 decision in United States v. Windsor, No. 12-307, required that the federal government extend to same-sex couples, who wed in the 13 states and the District of Columbia where gay marriage is legal, the same federal benefits that heterosexual couples receive.

In the wake of the high court's decision, family law lawyers across the state started getting calls from clients about whether same-sex marriages were now legal in Pennsylvania.

Last month, a federal lawsuit was filed challenging Pennsylvania's version of DOMA. Pennsylvania Attorney General Kathleen Kane said she wouldn't defend the law, which she said she believed was unconstitutional.

Soon thereafter, Montgomery County Register of Wills D. Bruce Hanes started issuing marriage licenses to same-sex couples. After the state Department of Health filed suit seeking to stop Mr. Hanes, Braddock Mayor John Fetterman married two Swissvale men in what was thought to be the first gay marriage in Allegheny County.

Family law attorneys' phones rang even more. Should clients get married in Montgomery County? Should they get married in one of the 14 jurisdictions in the country that allow same-sex marriage? Should they get married at all?

If someone told family law lawyer Richard Bost last year that Pennsylvania would be a battleground state for marriage equality, "I would have just laughed in their face," he said.

Mr. Bost was moderating a panel discussion at the Philadelphia Bar Association last week, on the impact of Windsor on Pennsylvania family law.

Rebecca Levin, an attorney with Jerner & Palmer and co-chairwoman of the LGBT Rights Committee of the Philadelphia Bar Association, said that because some states like Pennsylvania still ban same-sex marriage, there really is no federal definition of who is married and who is not. In terms of federal benefits and rights, that has meant the decision comes down to the agency level.

Some agencies haven't determined how they will address the same-sex marriage issue. For those that have, they tend to follow one of two tracks, Ms. Levin said. Agencies will either go by a "place of celebration" or "place of domicile" rule, she said.

Under the place-of-celebration rule, agencies will recognize rights and benefits to same-sex couples if the marriage was obtained in a place where same-sex marriages are legal, Ms. Levin said.

Under the place-of-domicile rule, agencies will recognize benefits and legal rights to couples who live in a state where same-sex marriage is legal, she said. Under that rule, a couple married in Vermont, for example, but living in Pennsylvania would not be eligible for that agency's benefits.

Ms. Levin gave a quick rundown of how certain agencies come down on the issue. Immigration follows place of celebration while Medicaid and Medicare follow place-of-residency rules. Military spousal benefits operate under place of celebration but veterans' benefits seem to follow place of residency, Ms. Levin said.

Social Security benefits operate under place of residency, but if a person starts receiving benefits in a state where same-sex marriage is legal and moves to a state where it is not, those benefits won't be canceled, she said.

When it comes to private employer benefits, for the most part employers are operating under place of residency, but things get complicated when an employee lives in one state and works in another or when a company has multiple locations, Ms. Levin said.

An audience member asked whether it was true that same-sex couples could file a joint return in a state like Massachusetts but couldn't do so in Pennsylvania. The panel uniformly answered yes.

"It's total chaos," said Tiffany Palmer of Jerner & Palmer.

Whether to get married and where involves an individual analysis for each couple, Ms. Palmer said.

When it comes to advising Pennsylvania clients on getting married in Montgomery County, Ms. Palmer said there is still the risk that those marriages will be invalidated. Even under the place-of-celebration rule, the federal government might not view Montgomery County as a valid place of celebration, she said.

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Gina Passarella: gpassarella@alm.com or 215-557-2494. Read more articles like this at www.thelegalintelligencer.com.


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