With Same-Sex Marriage Illegal in Ohio, This Couple Can’t Get a Divorce There, Either

Mallet, legal code and scales of justice

Brenda Mohney and Erin O’Leary filed for divorce in July and were granted the split in November. But now the Athens County, Ohio, judge who made the decision has reversed it.

Common Pleas Court Judge George McCarthy ruled on Tuesday, Dec. 23, that “it was not apparent” that two women were seeking the divorce rather than a man and a woman.

The confusion stems from the forms filed in July: Mohney’s name and earnings had been listed under the “wife” column on the document, whereas O’Leary’s name and earnings were underneath the “husband” column.

And although Mohney and O’Leary were both summoned to attend a hearing under a magistrate for their case, only Mohney showed up. The magistrate, however, was aware that O’Leary was a woman.

As a result of the ruling, Mohney and O’Leary are back to being married in states that recognize same-sex marriage, but not in Ohio, where such unions are not legalized.

“The issue of same-sex marriage is one of nationwide concern, and higher courts than this will eventually determine the constitutional issues related thereto with finality,” McCarthy wrote in his order. “In the meantime, Ohio law and policy … mandate that this court not recognize the parties’ union as a lawful marriage for purposes of Ohio divorce law.”

McCarthy also said that Ohio’s same-sex marriage laws make divorce for same-sex couples a gray area legally. However, other areas of Ohio, and other states where such marriages are illegal, have granted divorces by giving “full faith and credit” to out-of-state courts.

But because the marriage wasn’t legally valid in Ohio, McCarthy’s original Nov. 25 decision is void.

To give Mohney and O’Leary a chance to talk about their situation and to explain why he planned to overturn their divorce, McCarthy held two hearings earlier this month. However, O’Leary, who left the state, again did not show up.

Mohney and O’Leary legally married in California in 2008 before Proposition 8 was passed to bar same-sex unions in the state.

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