Since Whitewood v. Wolf in Pennsylvania and the federal Obergefell v. Hodges, gay people’s biggest worries surrounding marriage have been whether or not to invite that annoying second cousin on mom’s side of the family, centerpieces and what kind of food to serve the guests. What very few people realize is that, even though we have marriage equality nationwide, there are still many couples who are “wed-locked” in Pennsylvania.
“Wed-locked” was the legal limbo that thousands of LGBTQ individuals found themselves in until Obergefell made same-sex marriage legal across the country. There was a point just two years ago where only 18 states recognized same-sex marriages and almost all had residency requirements (often for up to a year) that couples had to meet in order to file for a divorce, which essentially left Pennsylvania couples wed-locked. Federal-level agencies used two standards by which to recognize a same-sex marriage. Over time agencies started adhering to what is known as a “state-of-celebration” standard. That means that, no matter where a couple is legally married, the union is recognized for the purpose of federal benefits, including by the Internal Revenue Service and the Social Security Administration. But other agencies adhered to a “state-of-residence” standard. In other words, same-sex marriage had to be recognized in the state the couple resided in for them to be eligible for certain benefits. If your “state of celebration” and “state of residence” didn’t see eye-to-eye on the issue of same-sex marriage, you found yourself unable to divorce at the state level.
Before marriage was even contemplated, civil unions were created to give LGBTQ people the rights and benefits of marriage without calling it marriage. This literally created a second-class version of marriage. And very soon, the Superior Court of Pennsylvania will have to address the legal recognition of civil unions.
Immediately after Whitewood v. Wolf, Freyda Neyman filed for an uncontested divorce. Neyman and Florence Buckley were both Pennsylvania residents when they traveled to Vermont in July 2002 to obtain a civil union. Last summer, the Hon. Margaret Theresa Murphy signed an order dismissing the complaint, stating that the Family Division does not have jurisdiction over civil unions. An uncontested appeal followed and briefs were filed this spring. As such, Neyman and Buckley and others who obtained a civil union at some point since 2000, when Vermont started recognizing them, and didn’t dissolve it prior to Pennsylvania recognizing marriage equality have found themselves wed-locked.
Presently, I have several couples who are in this predicament and I have received orders in all of their cases stating that the outcome of their uncontested divorces are pending the resolution of the appeal in Neyman v. Buckley. Thankfully, in one situation, one of the parties has since moved back to New Jersey, so we are re-filing there and should have no issue. Another one of my clients is not so lucky. She had no idea that this legal quagmire existed and went ahead and planned an expensive wedding with more than 250 guests for this coming November. They have to move forward with it and, while I have no doubt that it will be a lovely wedding, at the end of it, the couple will not be married until my client’s legal relationship to her former partner is dissolved. I have a third couple who are both in new relationships and have been patiently waiting for 12 years to be legally separated from their exes and to marry their existing partners and start families.
It is truly asinine that, after everything we’ve fought for, and in a post-marriage-equality world, people are still finding themselves second-class citizens. If you are one of those people, I recommend filing for divorce knowing that the outcome will be dependent on the Neyman vs. Buckley decision so that, procedurally, the divorce is underway. While nothing in the law is a slam-dunk, I am very hopeful that the Superior Court will recognize the burden placed on people, due to the unprecedented way in which we were gradually and haphazardly granted rights over time, and remove this final obstacle preventing LGBTQ people from being like all other Pennsylvanians.