In 1996, I was a legislative research analyst in the Pennsylvania House of Representatives when the General Assembly enacted the statute specifically prohibiting the recognition of same sex marriages. That statute provides as follows:
It is hereby declared to the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.
I recall listening to the floor debate in my office on the day of the Bill’s final passage and discussing it with other staff members. While I was not involved with the drafting or passage of the Bill, I very clearly recall the urgency among the elected members of the House to move the Bill quickly because there was a great fear that some judge in Hawaii could force the Commonwealth of Pennsylvania to recognize a marriage between same sex couples. And so it passed, unremarkably, and moved to the Senate for final approval before enactment.
But Tuesday was a remarkable day for same sex couples in Pennsylvania who have been governed by that 1996 law. Pursuant to Whitewood v. Wolf, 2014 WL 2058105 (U.S.M.D., May 20, 2014), the statute has been declared unconstitutional and same sex couples can now marry in Pennsylvania. There are headlines in every newspaper and on-line media outlets and videos on the internet and the news. There was a line at the Dauphin County courthouse yesterday morning when it opened of same sex couples wanting to apply for licenses. In Lancaster County, the first same sex couple to apply arrived at the Register of Wills office around 8:45 a.m. It’s historical, no question, and it is now the law of the Commonwealth.
Call me cautious but, when I see a picture of a same sex couple applying for their marriage license, I hope they’ve thought about the “business” end of the marriage, just like any other couple preparing for their wedding. In other words, are they so overjoyed/overwhelmed/excited or otherwise filled with so much emotion that they have overlooked some very important details affecting their marital relationship? All couples, same sex or not, should take time to consider the less exciting legal matters that may be affected by marriage. For example:
- Do either of the parties have minor children from a prior relationship? If so, are there any existing written agreements between the parties that would affect those children?
- Is there, or should there be, a prenuptial agreement between the parties setting forth each party’s rights and interests in marital or non-marital property?
- Does the couple own real estate together already and how does their marriage affect their ownership interests? Does the couple already have a co-ownership agreement in place and what effect does their marriage have on that agreement?
- Have the parties already engaged in estate planning, including Will and Living Will preparation? Does their marriage affect the distribution of their assets upon their death, based on what is set forth in the existing Will(s)?
My sincere congratulations and best wishes to all of the Pennsylvania couples who are preparing to realize the joys, contentment and challenges a marriage can bring. However, don’t forget to prepare properly. Every day I help clients deal with the issues that come up as they divorce (something they never considered when they applied for their marriage license). Some issues are relatively simple to solve and others are downright messy and complicated. Although the details of the ceremony may seem to be the most important matter right now, take the time to be honest with each other and make the proper legal preparations before you walk down the aisle.
Julie Miller is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Dickinson School of Law and practices in a variety of areas including Collaborative Law and traditional Family Law.