In re: Marriage of Davis and Summers (Ind. Ct. App. December 20, 2013)
An case with interesting facts was handed down by the Indiana Court of Appeals today. A couple was married in 1999 and had one child. Sometime before 2005, the husband was diagnosed with “gender dysphoria.” The husband filed a petition with the Marion Circuit Court requesting that his name changed from “David” to “Melanie” and that the gender on his birth certificate be changed from male to female. The husband’s petition was granted in full in 2008. The husband filed for divorce in 2012. In 2013, the trial court, sua sponte (for non-lawyers, this means that the court did this without being asked), issued an order stating that the marriage was void because Indiana law (Ind. Code 31-11-1-1) prohibits same-sex marriage and, importantly states that such a marriage is void “even if the marriage is lawful in the place where it is solemnized.” Thus, the trial court denied the petition for dissolution of marriage.
The Indiana Court of Appeals concluded that a marriage Ind. Code 31-11-1-1(b) did not have the effect of voiding the marriage. The court agreed with the husband’s argument that Ind. Code 31-11-1-1(a) “was meant to prevent the marriage of persons of the same sex from being considered as married in Indiana” and that Ind. Code 31-11-1-1(b) “simply states that a marriage between those of the same sex is invalid in Indiana even if it was solemnized in a state where same-sex marriages are permitted but does not automatically void a marriage that was initially valid in Indiana simply because one of the parties to the marriage has changed his or her gender.” The court went on to discuss Indiana statutes pertaining to void marriages and concluded “there is nothing in the Indiana Code chapter dealing with void marriages that declares that a marriage that was valid when it was entered into becomes void when one of the parties to that marriage has since changed his or her gender.”
The court went on to note the practical consequences of the trial court’s ruling. Though, to non-lawyers, it may seem that there is no difference between having a marriage declared “void” on one hand and “dissolved” on the other hand, the consequences of that decree would have been serious in this case. The Court of Appeals recognized that one effect would have been that the husband’s parental rights would be terminated, though probably only temporarily, and the child would have lost rights to parenting time and child support.
In short, this is a common-sense decision involving uncommon facts. A marriage is only “void” if something was legally defective about it from the start. The marriage of these two people was legal when was created, and this Court of Appeals decision allows this marriage to end in the same manner that other legal marriages end.
Ryan v. Janovsky (Ind. Ct. App. December 5, 2013)
The Indiana Court of Appeals was recently addressed with the question of whether a former spouse’s attempt to obtain a Qualified Domestic Relations Order (QDRO) over twenty years after the divorce was finalized was barred by the statute of limitations.
The federal law known as the Retirement Equity Act of 1984 provides that to divide a pension a QDRO must be approved by the pension plan administrator and signed by the divorce court in order to effectively assign a portion of one spouse’s pension to the other. In this case, the parties’ dissolution decree, granted on December 9, 1991, stated that “Wife shall receive a [QDRO] for her share of Husband’s pension which shall be computed as a sum equal to one-half (1/2) of his monthly benefit…” The former wife waited until 2012 to seek the husband’s signature to a QDRO. As of the time the former wife sought the QDRO, the former husband was not yet receiving his pension. The former husband refused to sign the QDRO when presented by the former wife. The former wife sought to force him to sign the QDRO by asking the trial court to hold in contempt for violating the paties’ dissolution decree. The former husband’s defense was that the requirement that he sign the QDRO was no longer enforceable since over twenty years had passed. The trial court agreed. Had the trial court’s decision stood, the former wife would have lost her share of the former husband’s pension.
While agreeing that the delay of 20 years in seeking the QDRO was “inordinate,” the Indiana Court of Appeals reversed the decision of the trial court and held that the former husband is required to sign the QDRO. The Court held that the ten year statute of limitations found in Ind. Code 34-55-9-2 was not applicable because enforcement of a judgment lien against real property was not sought by the former wife. The Court further held that the twenty year statute of limitations found at Ind. Code 34-11-2-12 was not applicable because what the wife was seeking was not “a money judgment for a sum certain payable immediately.” While the court did not decide which statute of limitations would be applicable to a case such as this one, it determined that the statute of limitations would not begin to run “until the date of the first distribution from the pension plan, at the earliest.” Since the former husband was not yet receiving his pension benefits, the court concluded that the statute of limitations had not begun to run and the former wife was still entitled to receive a portion of the former husband’s retirement.
The court went on to dismiss husband’s alternative arguments regarding the defenses of laches and waiver. The takeaway from this case is that, while it may be a good idea to get QDROs in place immediately after a divorce is granted, a delay will not necessarily extinguish a former spouse’s rights.