AUGUSTA, Maine — The Maine Supreme Judicial Court was asked Friday to determine if the day a same-sex couple was married out of state is their legal wedding date or if the union only became official more than four years later when Maine’s gay marriage law went into effect.
Attorneys who practice family law believe the answer is important to same-sex couples and their children who live in Maine because of the many financial issues that must be dealt with when couples divorce.
The question arose in connection with the pending divorce of Elisabeth M. Kinney and Tanya J. Busch in order to determine the division of marital property. At stake is the equity in a Hallowell house, purchased in September 2007. The couple has no children, according to briefs filed in the case.
The women were married on Oct. 14, 2008, in Massachusetts, well before Mainers voted to legalize the issuance of marriage licenses to same-sex couples and to recognize gay unions performed in other states. Maine’s law went into effect on Dec. 29, 2012. The U.S. Supreme Court in June legalized same-sex marriage in all states.
In January 2013, Kinney filed for divorce in Kennebec County District Court. District Court Judge Valerie Stanfill on Aug. 6, 2014, ruled that for purposes of the divorce Kinney and Busch were married in 2008. Because the Maine Supreme Judicial Court had never considered the question of when same-sex marriages performed out of state became legal in Maine, Stanfill and the attorneys referred the question to the justices.
Busch’s attorney, Scott Lynch of Lewiston, argued that the couple’s marriage was not legal in Maine until the referendum approved by voters on Nov. 6, 2012, went into effect about six weeks later. Nolan Reichl of Portland, who represents Kinney, told the justices that Maine law had to recognize Kinney and Busch’s wedding date as Oct. 14, 2008, when it was performed in Massachusetts, where same-sex marriage was legal.
The justices on Wednesday seemed reluctant to weigh in on the question because the divorce procedure has not been completed and Stanfill has not made a decision about the division of marital property. The state supreme court rarely considers an interlocutory appeal.
“We are very reluctant to take a reported question especially when the factual disputes are not yet resolved,” Chief Justice Leigh I. Saufley said. “If it had gone directly to trial, we might be here on an appeal and the court could resolve the entire matter. Why take on this case when there are still facts to be determined between the parties?”
The answer to that question, according to the more than three dozen attorneys who signed onto a “friend of the court” brief, is that determining when same-sex couples’ marriages became legal in Maine is an important legal issue for thousands of Maine families.
“The question presented is one of importance because the impact of a ruling that would treat marriages as occurring on Dec. 29, 2012, instead of earlier dates of actual solemnization could have myriad negative effects, cutting across many areas of the law, on potentially thousands of same-sex couples and their children,” the 53-page brief said.
“The intent [of the referendum] was to achieve marriage equality,” it said. “When the Maine public voted to approve [it], it did so in the context of seeking to achieve marriage equality for gay people and couples. A negative answer to the reported question would subvert this intent and perpetuate the disparate treatment of same-sex couples that the law was designed to stop.”
In addition to the division of marital property, the date of marriage is important in divorce proceedings for determining: spousal and child support; parental rights and obligations; division of pensions and other benefits; tax and other obligations, the brief said.
Similar questions are not pending before other state supreme courts, according to Portland attorney Mary L. Bonauto, who successfully argued the same-sex marriage case before the U.S. Supreme Court on behalf of gay couples.
The only dispute in the Kinney/Busch divorce is the Hallowell property. Its market value has not been determined, according to Lynch.
It is valued for tax purposes by the town at $125,600, according to the Hallowell treasurer’s office. The house on Greenville Street was purchased for $280,000, all of which was provided by Busch, according to court documents.
There is no timetable under which the justices must issue a decision.