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How to Protect Yourself or Your Client from Denial of Judicial Recognition of Obergefell Retroactivity in Common Law Marriage

If you haven’t had the chance to read my previous blog post on Obergefell retroactivity, I highly recommend going back and reviewing it for a better understanding of the topic. Today, I want to dive deeper into this issue and provide you with a more comprehensive guide on how to protect yourself or your client from denial of judicial recognition of Obergefell retroactivity in the context of common law marriage. Let’s explore some crucial strategies and considerations to keep in mind.

Understanding the Context: Sporadic Cases and Preexisting Relationships

First and foremost, it’s important to note that cases related to the denial of judicial recognition of Obergefell retroactivity in common law marriage are sporadic in nature. These situations typically arise when individuals find themselves in a gay relationship that predates June 26, 2015, and have not gotten married, are seeking a divorce, or have experienced the passing of a partner. While these cases may be infrequent, it is essential to be prepared in case you or your client find yourselves in such a precarious situation.

The Simple and Obvious Solution: Get Married

One straightforward solution to avoid the complexities of common law marriage is to get legally married. By formalizing your relationship through marriage, common law marriage ceases to be a concern, and you can eliminate the potential issues entirely. It’s a simple and effective way to protect your rights and ensure that your relationship is legally recognized.

Venue Selection: Choosing Common Law Marriage States

If you are not a resident of any common law marriage states, it may be worth considering a relocation to a jurisdiction that recognizes common law marriage. Several states, including Texas, Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Utah, and the District of Columbia, acknowledge common law marriage. However, the process of becoming a resident in these jurisdictions can vary, so it’s crucial to research the specific requirements. As a general guideline, establishing residency by living in a state for three months is often a good rule of thumb. Additionally, obtaining a driver’s license from your new state can serve as further proof of residency.

Civil Procedure: Ensuring Airtight Jury Charges

When dealing with legal matters related to common law marriage and Obergefell retroactivity, it is crucial to pay close attention to civil procedure and ensure that your jury charges are airtight. By meticulously crafting and presenting strong jury charges, you can strengthen your case and increase the chances of a favorable outcome. It is recommended to study cases that have addressed similar issues, such as the Texas case Hinojosa v. Lafredo, No. 05-18-01543-CV (Tex. App. Jun.2, 2021), to gain insights and guidance on constructing effective jury charges.

In the Event of a Loss: Filing a Writ of Habeas Corpus in Federal Court

If, despite your best efforts, you find yourself on the losing side of a common law marriage case involving Obergefell retroactivity, it may be necessary to take further legal action. One possible course of action is to file a writ of Habeas Corpus in Federal court, specifically for a Due Process claim. By leveraging this legal avenue, you can seek redress and challenge the denial of judicial recognition by asserting that your constitutional rights to due process have been violated. Engaging the assistance of an experienced attorney familiar with Federal court procedures is highly recommended for this complex process.

Conclusion: Safeguarding Your Rights in Common Law Marriage Cases

In conclusion, protecting yourself or your client from the denial of judicial recognition of Obergefell retroactivity in common law marriage requires a comprehensive and proactive approach. By understanding the sporadic nature of these cases and the importance of preexisting relationships, opting for legal marriage, selecting appropriate venues, focusing on civil procedure, and pursuing further legal action when necessary, you can enhance your chances of a positive outcome. Remember to consult with knowledgeable legal professionals who can guide you through the intricacies of common law marriage laws and advocate for your rights effectively.

Written By: Jacob Scholl

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