Attorney Jay Babbitt on the unique legal issues couples may face when marriage equality becomes reality in Ohio

By G. Jay Babbitt, managing partner of Babbitt & Dahlberg

Ready or not, here it comes. Whether as a result of the U.S. Supreme Court's upcoming decision in Obergefell v. Hodges or by independent state action, it is entirely likely that in the very near future homosexual couples will be permitted to marry in Ohio and have their out-of-state marriages recognized in this state. While supporters of same-sex marriages will rejoice, the granting of marriage equality will create unique legal issues that must be sorted out by domestic relations courts.

When a couple divorces in Ohio, for purposes of valuing and dividing property the court must decide when the marriage began. Typically, property acquired by a party before the date of the wedding is considered that party's separate property, and hence is not usually divisible upon divorce. But that's not always the case. Depending on how long the parties lived together before the marriage, the nature of their relationship and the extent to which they shared resources, the divorce court can treat premarital assets as marital property, subject to equitable division.

This issue may become important for same-sex couples who marry after cohabiting for a significant amount of time. Unlike heterosexual couples who were permitted by law to choose to marry and become economic partners with their spouse, homosexual couples have not had that option. For them, in order to fairly divide property, the courts may need to expand the notion of when a marriage begins.

A carefully drafted premarital agreement can resolve the question. For any couple, regardless of sexual orientation, if there was a significant period of cohabitation prior to marriage, a prenuptial agreement should be considered a matter of necessity. Before the wedding the parties should agree in advance how to divide the premarital assets and debt should the marriage end in divorce or death of one of the partners. Can these discussions be uncomfortable? Of course they can, but if these and other weighty issues can't be rationally discussed before the wedding, is marriage the right choice anyway?

Because a poorly drafted prenuptial agreement may be set aside or otherwise ignored by the divorce court or by the Probate court in the event of death, legal counsel is absolutely necessary. A properly trained attorney with experience in domestic relations matters can negotiate the many potential minefields of a prenuptial agreement. It is always advisable that each party have independent counsel. Due to the inherent conflict of interest of the parties it is unethical for one attorney to represent both parties in a prenuptial agreement. While it is not necessarily improper for only one of the parties to have legal counsel, this is almost universally a bad idea. In order to avoid the appearance to a reviewing court that the represented party took advantage of the other, both parties should have their own lawyer. This financial investment will be repaid many times by avoiding costly litigation if or when it becomes necessary to interpret the agreement.

Even before the couple begins living together, they can avoid future disagreements by entering into a cohabitation agreement. This binding contract can define the nature of the economic partnership before property and debt are created by cohabiting partners. It can and should clearly identify what property each party is bringing to the relationship and what is to become of that property if the relationship ends. The agreement should clarify how the couple will pay common expenses and which expenses and purchases will be considered separate. If after cohabitation the couple decides to solemnize their relationship by marriage, the cohabitation agreement will not suffice as a replacement for a prenuptial agreement.

The bottom line is that marriage equality means that same-sex relationships will finally be treated in the same manner as heterosexual couples – including the manner in which those relationships may potentially end. It's a sad truth that some marriages just don't work out, but careful planning now can help those couples enjoy all the joy and benefits of marriage, and can save future heartache if those relationships falter.

Gerald "Jay" Babbitt is managing partner of Babbitt & Dahlberg. He is a certified OSBA Family Relations Law Specialist with 30 years experience. He may be reached at 614-228-4200.