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Can Common Law Marriage be Backdated / Is Obergefell Retroactive?

The 2015 landmark Obergefell Supreme Court case allowed gay couples to be able to get married finally. Allowing for basic civil rights, The Court allowed same-sex couples to visit each other in the hospital, guarantee an inheritance, adopt children, and much more. The flood gates opened, and much work around the country was done to expand the rights of same-sex couples, but one right remains in limbo….

Alfonso and Brad fell in love in 2007. Deciding to be financially savvy, they moved in together in 2008 after the housing crisis. They shared clothes, vehicles, pets, holidays. Everything. 2015 rolled around, and they planned to get married, but life happened, and they never got around to it. Alfonso was busy finishing up medical school, and Brad worked as a 5th-grade teacher to support their household. They didn't have the money to throw the big wedding they always dreamed of. Still, they held themselves out to their friends and family as husbands and wore wedding bands around their ring fingers.

Years went by, and the thought of spending all that money on a big wedding just seemed silly. Why do that when it could be spent on so much more? Alfonso graduated from medical school and worked his way up to be a successful heart transplant surgeon. By 2016 he was making well over 300,000 dollars a year, and Brad was over halfway to retirement and had a great 401k and pension from the teacher’s union.

But everything changed in 2016. Brad comes home early from work and hears "bumps" coming from upstairs. He goes up to investigate. You see where this is going. Brad peers open the door and see his ex-boyfriend, Charles, in bed with Alfonso. Brad closes the door and goes downstairs, and leaves.

Brad hires The Law Firm of Bryan Fagan to divorce Alfonso. Brad wants half of all their assets. Brad claims he and Alfonso are common-law married. Alfonso says they were never married and that common law marriage cannot apply because Obergefell has only been law for a year. Brad's lawyer argues that Obergefell is retroactive and that they have been married since 2008.

So, what’s the deal? Is Obergefell retroactive? Wait, what even is common law marriage?

Let’s back up.

What is Common Law Marriage?

Texas and Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Utah, and the District of Columbia recognize common law marriage. Alabama, Florida, Georgia, Idaho, Indiana, Ohio, Pennsylvania, and South Carolina also recognize common law marriage before a specific date (each state is different).

Great, now that you’ve read about Common Law Marriage, here’s the million-dollar question:

Is Obergefell Retroactive?

Are Alfonso and Brad Common Law Married? Considering all the things that make a common law marriage valid—they held themselves out as husbands to the world; they wore wedding bands; they shared a home; they shared assets; they shared pets; they shared everything. Under normal circumstances, of course, they are common law married. But here's the kicker…time. Time is everything. Do we start time in 2015 when Obergefell became law, or do we start in 2008 when they moved in together?

If we started time in 2015, they've only technically been together for less than a year, but if we started in 2008 when they moved in together, we could certainly establish common law marriage. If they are married, then Brad gets half the stuff.

Short Answer: Yes, Obergefell is retroactive. However, some jurisdictions like Texas and South Carolina use the complex civil procedure to deny litigants their constitutional rights. For a more detailed analysis, see below (note that the details below are written at a legal professional reading level).

Federal:

The seminal case regarding Obergefell retroactivity is Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. 2016). This case is…incredible, and I can’t imagine the strain of the plaintiffs in proving her case. If you want an example of bravery, look no further. The lawsuit stemmed from a car crash case of all things. In summary: the car crash happened in 2014; Ms. Ranolls died from the crash; her lover, Ms. Hogan, had to prove that she was common-law married to Ms. Ranolls; the defendants fought her tooth and nail so that she would not be entitled to damages for wrongful death, etc. It isn't perfect, quite frankly. Imagine losing your wife in a car crash, and then the defendants have the gall to exacerbate you further by suggesting you cannot be entitled to relief because you are gay. What is most superb about this case is that Obergefell was decided halfway through it!

Mr. Steve Waldman of the Terry Bryant Law Firm took on this case before the Honorable Marcia Crone. Mr. Waldman explains that the firm was locked and loaded, ready to make the argument once the Obergefell decision came down. Judge Crone abated her ruling on the matter until SCOTUS handed down their ruling. What is the most fascinating is not that a personal injury firm handled an important family law matter (which in and of itself is incredible), but that they were ready to go the second the decision came down. Plaintiffs in these cases are EXTREMELY rare. First, plaintiffs must be gay, which is only 3.5% of the population. They must have been dating or been together before 2015. Then they must not have been married after Obergefell was handed down. And then someone must either die or wants to divorce.

The court stated, “Generally, in both civil and criminal cases, unconstitutional laws and rules are void ab initio, or void from inception, as if they never existed,” then cites about five authorities to back it up. It’s brilliant. “Over the Years, the Supreme Court has issued a series of decisions addressing retroactivity and its limitations,” again citing to half a dozen authorities.

Citing the Supreme Court from Rodrigue v. Aetna Casualty and Surety Company, 395 U.S. 352, 89 S. Ct. 1835, 23 L.Ed.2d 360 (1969).

"First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not foreshadowed. Second, it has been stressed that 'we must…weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Finally, we have weighed the inequity imposed by retroactive application…"

For those interested more in the analysis of retroactivity, Judge Crone's analysis is brilliant and flows like water. For those of you legal geeks, I highly recommend it.

The second case is Ford v. Freeman, No 3:18-CV-3095-B (ND Tex. 2020), and is only one page long. In this case, an insurance policy payout is at issue. The beneficiary was assigned in 1996, and the will was executed in 2004. The Court affirmed the finding of the United States Magistrate Judge that the will was valid to the decedent's common-law same-sex spouse.

Texas:

Penned by Justice Patrida-Kipness, Hinojosa v. Lafredo, No. 05-18-01543-CV (Tex. App. Jun.2, 2021)[1], incorrectly upheld the trial court’s interesting error. In this case, the trial court put the question of Obergefellretroactively to the jury. The jury was asked, “Are [the parties] informally married?” Confused, the jury asked:

"If the same-sex couple met the requirements of informal marriage before June 26, 2015, does the Obergefell decision state whether the effective date of the informal marriage is the date of the Supreme Court decision or the date the conditions were met?”

The trial court responds:

“You have all the law and instructions to answer the question in the jury charge.”

There were two issues in this case on appeal. The first is that the parties were married in Italy in 2000. The jury was not instructed as to whether this marriage was valid. The second is, of course, the jury instruction above.

Courts decide questions of law. Juries decide questions of fact. It is improper for the court to assign questions of law to the jury. That’s a fact.

Let’s get into the first issue. Why didn’t the Court hold the marriage in Italy to be valid? Civil procedure. The Court states that the jury charge was lacking “substantially correct wording.” The court was correct here. The instructions given were ambiguous and not fully laid out. It’s unfortunate.

Next, the court states that the four elements of a formal marriage were not completed: (1) get a marriage license; (2) the clerk executes the license; (3) the ceremony is 90 days within the execution; (4) there's a ceremony with a clergyman or official. Appellant argues that the first three were impossible in Texas in 2000 and that Obergefell should render these elements automatic. The court declines to do so, arguing it would open the flood gates. Indeed, the court states the truth, "The legal question of whether Obergefell is retroactive has not been determined by the Supreme Court of Texas or by The U.S. Supreme Court." However, the court cites Ford v. Freeman and Rannells.

Indeed, the court skirts this question by determining that the clergyman was not certified to perform Italy's marriage. Again, the Court rules correctly. The clergyman was some “psychic spiritual guide,” not a minister. Let’s move on.

The Court goes on to obliterate appellants' second argument through the civil procedure rather unfairly. The Court claims that the appellant did not object to the trial court's answer to the jury's question and thus did not preserve the issue for appeal. Further, the Court stated whatever confusion the jury may have had was immaterial to the threshold question presented, which is preposterous.

Most importantly, the Court did not even touch on the question presented as a question of law rather than a question of fact. The jury is not to decide questions of law, only of fact. The Court skipped this entire argument in error. Hopefully appellant will seek Certiorari of a writ of Habeus Corpus.

Other Texas Precedent:

Texas still has precedent, however, as cited in the Ranolls case above.

In the fall of 2015, a County Clerk in Tarrant County, Texas, refused to register a “Declaration of Informal Marriage" between two men claiming they had been in a common-law marriage for twenty-three years. After being contacted by the couple's attorney, the Tarrant County Clerk issued a statement, clarifying that her office would accept common-law affidavits dated before June 26, 2015, the date of the Obergefell decision.

Also, a same-sex couple was married in Travis County, Texas, in February of 2015. In re State, 489 S.W.3d 454, 457 (Tex. 2016). A Travis County Judge granted the couple's request for a temporary restraining order, preliminary injunction, and permanent injunction to declare [the definition of marriage as between a man and a woman] unconstitutional. The Texas Attorney General sought a writ of mandamus with the Supreme Court of Texas challenging the validity of the trial court's order and failing to provide notice to the Attorney General. This case was dismissed as moot after Obergefell was issued. Though the court did not hold so explicitly, it applied Obergefell retroactively to validate the February 2015 marriage.

Lastly, Parker v. Pidgeon, 477 S.W.3d 353, 354 (Tex. App. Houston [14th Dist.] 2015) recognized an out-of-state same-sex marriage that was pending an injunction. After Obergefell was issued, this injunction was reversed.

Colorado:

The Honorable Judge Rebecca Freyre penned the Court of Appeals opinion in 2018 with help from her brilliant and handsome law clerk, Jacob Scholl. Hogsett v. Neale, 480 P3rd 696 (Colo. App. 2018). Judge Freyre gives a detailed analysis with four paragraphs. Indeed, neither party in the case even cared to contest the retroactivity; to them, it was obvious and the decent thing to do. Supreme Court of Colorado affirmed its lower Court of Appeals opinion stating that Obergefell was indeed retroactive, but not really, “Because neither party here contests Obergefell’s retroactive application, that question is not before us. In this case.” Hogsett v. Neale, 478 P3rd 713 (Colo. 2021).

Montana:

The Supreme Court of Montana affirmed its lower District Court’s opinion that Obergefell was retroactive. Adami v Nelson (In re J.K.N.A.), 398 Mont. 72 (Mont. 2019). The Montana Supreme Court cites the Ranolls case mentioned above, “Therefore, Obergefell’s holding that state prohibitions against same-sex marriage violate the United States Constitution operates retroactively about Adami’s claim that a common-law marriage existed with Nelson, and her claim is not barred on those grounds."

DC:

Citing the Pennsylvania case, Gill v. Van Nostrand, 206 A. 3d 869 (D.C. 2019) gives a comprehensive retroactivity analysis. “We now expressly recognize, as the trial court did and as did Obergefell…that a same-sex couple may enter into common-law marriage…and this rule applies retroactively.” And “a party in a same-sex relationship must be allowed to prove a common-law marriage, even at a time when same-sex marriage was not legal."

Pennsylvania:

Common-law marriage is unavailable in Pennsylvania since 2003, so this entire realm of case law will be obsolete one day. In Re: Estate of Carter, 159 A. 3d 970 (Pa. Super. Ct.), the superior court reversed the trial court’s ruling that Obergefell retroactivity was a legal impossibility, “because defining marriage as one man and one woman has been declared unconstitutional, it cannot preclude the recognition of common law marriage [before Obergefell].” Moreover, the Superior Court overruled itself from a similar case in 1984, which the trial court relied upon.

Additionally, as cited in Ranolls, In Re Estate of Kimberly M. Underwood, Mp/ 2014-E0681-29 (Bucks County Court of Common Pleas, July 2015), the court found that a decedent and her surviving spouse had been married since 2001, until the time of the decedent’s death in 2013.

South Carolina:

Without a doubt, the most confusing legal opinion in this list is Swicegood v. Thompson, WL 192045 (S.C. Ct. App. 2016), penned by Chief Judge James E. Lockamy. As the late Justice Scalia would say, “Pure Applesauce.” The court dances back and fro’ on the line of dignity, scholastic integrity, and mere train of thought.

One moment you think they favor ruling one way; the next, you are sure they are opening in the alternative. To spare you, the reader, any drain on your valuable time—The Court states that yes, Obergefell is retroactive but attempts to differentiate between all the other cases on our list due to issues on the timeline. In short, the litigants separated, claimed common law marriage, and the trial court rendered a judgment before Obergefell had been issued.

The first infuriating issue is the trial court rendering its judgment a mere month before Obergefell was issued. The appellate division glossed over this stark judicial misconduct. The trial court should have abated its decision as the Rannolls court did.

“Our review of United States Supreme Court decisional law compels the conclusion Obergefell must be applied retroactively.” Despite this, the court terrifically completes a triple somersault of mental gymnastics to ask themselves if their previous law against same-sex marriage could still be applied. Rather than guide the readers along a beaten path, explaining the timeline, they dive down a rabbit hole of “impediments.” Evidently, in South Carolina, you must agree to be in a common-law marriage? I don't understand. Perhaps I should bang my head against the wall with fantastical force to understand the Court’s genius.

The Court rules that even though Obergefell applies retroactively, so too does their law stating that same-sex marriage is not permitted because the litigants did not intend to be married because they knew they could not. Yes, you read that correctly. Basically, “Yeah, we recognize the Supreme Court says we should do something, but we’re South Carolina and whateva, we do what we want.”

The Court is obnoxious in its recognition of sister states that have "recognized informal or common-law marriages have applied Obergefell retroactively to find litigants were entitled to establish common law marriage," citing Colorado’s Hogsett, D.C.’s Gill, Federal’s Rannells, and Pennsylvania’s Carter.

The ghastly lack of logical reasoning and basic human decency is an affront of judicial officers everywhere. Not only is it immoral, but the analysis begs the question, “Did you pass the bar exam?”

Let’s hope counsel John G. Reckenbeil files for Certiorari and a writ of Habeus Corpus. Probably, not considering he’s just an employment lawyer.

Other Jurisdictions:

Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, New Hampshire, Ohio, Oklahoma, Rhode Island, and Utah do not have any rulings.

Other Authorities:

In contrast to case law, the articles written on the subject are numerous and bountiful (sorted by relevance).[2]

Lee-ford Tritt, Moving Forward by Looking Back; The Retroactive Application of Obergefell, Wis. L. Rev. 873 (2016).

Steven A. Young, Retroactive Recognition of Same-Sex Marriage for The Confidential Marital Communications Privilege, 58 Wm. & Mary L. Rev. 319 (October 2016).

Charles W. “Rocky” Rhodes, Loving Retroactivity, 45 Fla. St. U. L. Rev. 383 (Winter, 2018).

Kaitlin E.L. Gates, Catching the Gold at the end of The Rainbow: The Impacts of Retroactive Recognition of Same-Sex Marriage on Community Property Division, 9 Est. Plan. & Community Prop. L.J. 263 (Spring, 2017).

Andrew M. Albritton, Separation Equality: Retroactive Community Property Regimes for Long-Term Same-Sex Couples, 30 Tul. J. L. & Sexuality 153 (2021).

Mark Strasser, Obergefell, Retroactivity, and Common Law Marriage, 9 Ne. U. L. Rev. 379 (Summer, 2017).

Timothy Ramos, Colorado Court of Appeals Holds That Same-Sex Couples May Allege A Common-Law Marriage Existed Pre-Obergefell, 2019 LGBT L. Notes 10 (January 2019).

Huiyi Chen, Balancing Implied Fundamental Rights and Reliance Interests: A Framework for Limiting the Retroactive Effects of Obergefell in Property Cases, 83 U. Chi. L. Rev. 1417 (Summer, 2016).

Mark A. Momjian, Common-Law Marriage Recognition After Obergefell: Evidentiary Challenges Facing Same-Sex Litigants, 91 Pa. B.A. Q. 142 (October 2020).


[1] The Court had previously rendered a judgment in December 2020 but vacated that judgment on its motion due to one of the judges being replaced by-election. This new opinion includes Justice Goldstein, who succeeded Justice Evans.

[2] You can find more articles and sources using the following search on Westlaw or Lexis Nexis

adv: Obergfell v Hodges and retroactive! And Common Law marriage. Then filter by date after June 26, 2015.

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