Same-Sex Divorce Vacated Because Marriage Legally Invalid

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An Athens County judge vacated a ruling Thursday that inadvertently allowed the divorce decree of a same-sex couple.

The decision was vacated, the judge said, because the marriage itself was invalid in Ohio.

In an entry filed in the Athens County Common Pleas Court, Judge George McCarthy said he had no choice but to vacate his decision granting the divorce because Ohio statutory law and the Ohio constitution do not recognize the marriage of Brenda Mohney, of Nelsonville and Erin O’Leary, of Athens.

The divorce was granted by McCarthy on Nov. 25 on the recommendation by Magistrate Melinda Bradford. At the time, “the court did not realize the parties were of the same gender,” McCarthy wrote in Thursday’s court entry.

The two women were married in 2008 in California. Mohney filed for divorce last July, according to previous Messenger reporting.

Throughout the proceedings, Mohney had been the only party to appear in court, therefore McCarthy never saw O’Leary.

After the error was found, McCarthy ordered a hearing to determine whether the divorce decree should be vacated and ordered a continuance to allow the parties to prepare for an anticipated vacated decision.

The issue became a matter of jurisdiction, McCarthy said, and because the court is in Ohio, the divorce decree had to be vacated.

“…In Ohio, it has long been held that the parties’ valid marital status is a prerequisite to a court’s exercise of subject matter jurisdiction in a divorce case,” McCarthy wrote.

In this case, the parties “did not have a valid marriage for the purposes of Ohio law,” therefore the courts could not enter a divorce decree, according to the court document.

The federal 6th Circuit Court of Appeals recently said Ohio did not have to recognize same-sex unions, even those made in other states.

However, McCarthy noted in the conclusion to the decision that the court’s action to vacate the decree “should not be interpreted as arising from any personal viewpoint or reflecting any bias for or against the parties or their relationship.”

“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.