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.

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

Today the California Supreme Court struck down the state’s ban on same-sex marriage in a 4-3 ruling. The court’s ruling stated that “the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes.” Instead, the question the Court answered was whether the failure to designate the official relationship of same-sex couples as marriage instead of the state recognized domestic partnership violates the California Constitution. The Court found that it did.

The decision and its dissents is 172 pages, so there is a lot to digest. I will post more after I have been able to  read through it in full. In the meantime, to read the opinion yourself, you can find it here. There are also posts through the blogosphere today on the issue, including here at Steven Ballard’s Massachusetts Divorce & Family Law Blog, here at Family Law Prof Blog, and here at Jeffrey Lalloway’s California Divorce and Family Law Blog.