The status of out-of-state civil unions in Pennsylvania is undecided.
Pennsylvania can grant same-sex divorces, but the jury is still out about whether it will dissolve civil unions and other domestic partnerships entered into in other states. While same-sex couples may now get married and divorced from a legally performed marriage in Pennsylvania, other marriage-like unions cannot be entered into in Pennsylvania and MAY not be able to be ended in Pennsylvania by means of a divorce.
For example, a couple could enter into a valid Colorado civil union, move to Pennsylvania and then want to dissolve that union in Pennsylvania. Interestingly, Colorado civil unions can be entered into by both same- and opposite-sex couples, so this issue can exist for both gay and straight couples alike.
Pennsylvania Same-Sex Marriage
Pennsylvania law only allowed marriage between a man and a woman, but this was declared unconstitutional in the May 20, 2014, federal case of Whitewood v. Wolf. The judge also ordered Pennsylvania to recognize gay marriages from other jurisdictions. Since that date, Pennsylvania has granted marriage licenses to same-sex couples and can also issue divorces to them.
The Thorny Question Of Ending Civil Unions And Domestic Partnerships
Whether a Pennsylvania court can dissolve an out-of-state civil union or domestic partnership is unsettled. No published case from the commonwealth addresses whether a Pennsylvania court can dissolve a valid marriage-like union from another state.
A 2010 Pennsylvania case may shed light on how future courts might decide the question. InKern v. Taney, the trial court refused to grant a divorce to a same-sex couple that had been married in Massachusetts. Being three years before Whitewood ordered otherwise, the Kerncourt said that the Massachusetts same-sex marriage was “not recognized in Pennsylvania.” From there, it reasoned that divorce was therefore unavailable in the commonwealth for that couple.
If a Pennsylvania court followed the Kern reasoning, it would likely deny a request to dissolve a civil union or domestic partnership from another jurisdiction because the institution is not recognized in Pennsylvania. However, Kern was a trial court decision, rather than a higher state court with more authority and was decided before gay marriage became legal in the commonwealth.
Many Judicial Options
When ending out-of-state civil unions or domestic partnerships has arisen in other states, their courts have made many different types of decisions. Those opinions and the writings of legal scholars suggest that a Pennsylvania court could deviate from the Kern train of thought and take any one of a number of approaches:
- The court could refuse to apply Pennsylvania divorce law to an out-of-state marriage-like union, but could dissolve it using its equitable powers, meaning broadly its judicial authority to resolve disputes before it in fairness and justice.
- The court could equate a marriage-like union to a Pennsylvania marriage based on comity – the concept that a court in one state generally recognizes and gives deference to the laws of other states, even if different than those of the home state. It could then apply Pennsylvania divorce law to end the union.
- The court could allow limited recognition of a valid marriage-like union only for purpose of dissolving it.
- The court could annul or void the out-of-state arrangement. Interestingly, Kern discussed this possibility for the same-sex divorce request before it at that time.
- The court could apply the law of the state that created the marriage-like union to dissolve it.
- The court could apply other reasoning.
Seek Experienced Legal Counsel
Of course, the simplest solution would be to allow the termination by divorce of all types of unions, marriage and otherwise. This would be the common sense approach. To prevent divorce between couples who legally united through other than marriage would perpetuate the difficulties currently being experienced by those couples regarding health insurance, “marital” asset division and disposition of assets upon a death, particularly when such a couple separates and one person moves to a state with different laws controlling same-sex marriage. Until the state legislature or state courts address this issue, it is especially important that any Pennsylvanian needing to dissolve an out-of-state legal arrangement seek legal advice from a knowledgeable family lawyer.
Keywords: Pennsylvania, same-sex marriage, civil union, domestic partnership, divorce, dissolution, state, court, comity