New Hampshire Divorce Lawyer & Attorney : Crusco Law Firm : Family Law, Custody, Child Support : Manchester, New Hampshire, Massachusetts

When the Massachusetts Supreme Judicial Court issued the Goodridge decision legalizing same-sex marriage in the Commonwealth, many people inside and outside the state became concerned about couples coming from other states to marry in Massachusetts. In the first few days of same-sex marriage, marriage licenses were issued to non-residents, and have resulted in decisions such as Chambers v. Ormiston which held that Rhode Island courts did not have jurisdiction to hear a divorce case between two people of the same-sex because the state did not recognize the marriage.   

However, Governor Mitt Romney quickly dusted off the Marriage Evasion Act M.G.L.A. 207 § 11. This law was enacted in 1913 and prohibits the marriage of a non-resident in Massachusetts if the marriage would be illegal in their home state. Governor Romney ordered town clerks to strictly enforce the law when handing out marriage licenses.

The original intent of the law is unknown for there is no record of the legislative history. However, the law was enacted during a time when the majority of states (30 out of 48) outlawed interracial marriage, and it is commonly believed that this law was meant to smooth relations between Massachusetts, which has allowed interracial marriage since 1843, and those states that banned such marriages. Massachusetts State Senator Harry Ney Stearns sponsored the 1913 Law on March 7, 1913 and the bill was signed three weeks later by Governor Eugene N. Foss

On July 15, 2008 the Massachusetts Senate voted to approve a bill that will repeal the 1913 law and the House is expected to vote in the near future. Repealing the law paves the way for out-of-state same-sex couples to marry in Massachusetts. Opponents argue that repealing the law meddles in the internal affairs of other states, forcing them to recognize gay marriage, and creates a legal limbo for families. On the other hand, proponents argue that the law should be repealed as a “vile and antiquated remnant of prejudice and bigotry.”

How will the repeal of this bill affect New Hampshire residents? As previously discussed on this blog, New Hampshire allows civil unions and recognizes out-of-state marriages as civil unions. If the Massachusetts house votes to repeal the law, New Hampshire residents may marry in Massachusetts, and return home to have their marriage recognized as a civil union.

There are many in-depth articles chronicling the path of Massachusetts in repealing this law and its effect on same-sex marriage. Some of these articles are below:

·         A 1913 Law Dies to Better Serve Gay Marriages

·         Will the State of Massachusetts Ever Permit Same Sex Out-of-Staters to Marry?

·         Massachusetts Senate Votes to Repeal Law Barring Out-of-State Couples From Marrying

·         Senate Votes to Repeal 1913 Law

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Today the Massachusetts Supreme Judicial Court issued an opinion in the case of Charron v. Amaral that held that marriage benefits for same-sex couples do not apply retroactively to the Goodridge v. Department of Public Health  decision.

The case involves a couple, Michelle Charron and Cynthia Kalish, who began dating in 1990, moved in together in 1992 and subsequently bought a house together and had a child that both partners adopted. The couple also exchanged rings in a private ceremony in 1994 and obtained a marriage license in 2004 on the first day such licenses were available to same-sex couples. Charron sought treatment for a lump in her breast in 2002, was diagnosed with breast cancer in 2003 and died in 2006. The claim arose as a malpractice case for loss of consortium.

The plaintiffs argued that, but for the ban on gay marriage, they would have been married at the time the malpractice claim arose in 2002, and therefore the loss of consortium claim should be applied retroactive to the Goodridge decision. The SJC disagreed, and held that it was clear that Goodridge was intended to apply prospectively because it was such a radical change in the law that it required time for the legislature to act. Furthermore, the court found that:

to allow Kalish to recover for a loss of consortium if she can prove she would have been married but for the ban on same-sex marriage could open numbers of cases in all areas of law to the same argument.

Although this case involves a malpractice/loss of consortium claim, the opinion has ramifications for divorce matters in Massachusetts. It is likely that, as a result of the Charron decision, same-sex couples who are divorcing will be barred from arguing that but for the ban on same-sex marriage, the couple would have had a long term marriage retroactive to Goodridge. The difference between a long term marriage and a short term marriage can have ramifications on the property division and alimony awards.

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The New Hampshire Supreme Court released an opinion on June 3, In Re Estate of David J. Bourassa that clarified the requirements for Common Law Marriage in New Hampshire. The relevant Statute is RSA 457:39. New Hampshire does not recognize common law marriage. However, what the State may recognize is what can be considered a common law marriage by death. The requirements are in three parts:

1. Cohabitate for 3 or more years preceding death of one partner; and
2. Acknowledge one another as husband and wife; and
3. Generally presumed to be husband and wife in the community

This means that a cohabitating couple who is not legally married who have been together for 3 or more years and hold themselves out to be husband and wife are considered legally married upon the death of one partner. It is the death of one partner which triggers the statute if all other elements are satisfied. A couple who simply cohabitate for 3 or more years is not considered legally married under the law.

In the Bourassa case, the couple, David and Deborah, had cohabitated for 10+ years and had one child together. When David died Deborah filed a petition to be declared David’s common law spouse. The Court determined that Deborah had failed to show that she and the deceased fulfilled the last two prongs of the statute. They had not acknowledged or generally been presumed to be married. On the contrary, they were very vocal in making sure everyone knew they were not married.

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

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