Written By: Ali Audi | July 7, 2015 | No Comments

In light of the recent U.S. Supreme Court ruling (Obergefell v. Hodges), in which same-sex marriage was legalized in the whole country, we have received questions as to exactly what rights have now been gained. We have therefore put together a short primer on the rights and obligations granted to couples before, during and after marriage. While this discussion does note some issues more directly affecting same-sex couples, the general principles apply to all marriages in Pennsylvania.

Before Marriage, the Prenuptial Agreement

A prenuptial agreement is a contract which sets out the rights and obligations of the parties in the event that the marriage does not succeed. The agreement can be basic and simply state the property that each party is bringing into the marriage and is thus excluded from marital property in the event of a divorce. Or the agreement can be more in-depth and provide specific levels of support for each party based on factors like the length of marriage, number of children or any other factors.

Since the Pennsylvania Supreme Court decided Simeone v. Simeone, 581 A. 2d 162, in 1990, the enforceability of prenuptial agreements has become easier. The Court found a more gender-neutral footing in deciding that courts should not play the role of parent in protecting the disadvantaged (often female) spouse. Courts should not look to whether a pre-nuptial agreement is fair or equitable. Instead, for a prenuptial agreement to be enforced, the Court must find that there was an absence of fraud or duress and a full and fair disclosure of the financial conditions of each party prior to the signing of the agreement. For this reason, it is important that you have an attorney review any prenuptial agreement, just as you would with any other contract, so that you are aware of what you are signing away.

During Marriage, Adoption

Often when parties get married, one spouse will adopt the child of the other spouse to form a “complete” family unit. The inability of same-sex couples to adopt together was one of the key issues raised by Plaintiffs in the Obergefell case and noted by the Supreme Court. However, there is still a general principle that a child can only have two parents (this was often referred to as the “one mom, one dad” rule). As such, it is likely that any adoption will need to be preceded by a petition to terminate the rights of another parent. This can either be done through a voluntary or involuntary termination.

The Commonwealth of Pennsylvania takes the termination of parental rights very seriously; as such there are very specific steps that must be taken in either scenario (and even with an agency adoption). Because of the highly emotional nature of termination and adoption proceedings, it is very much recommended that you speak to an attorney to determine whether this is the right step for you to take and to help guide you through the process as efficiently as possible.

After Marriage, Divorce, Custody and Wills

Same-sex couples, who are entitled to marry, are also now entitled to the rights and protections of the Divorce Code. The code allows for fault and no-fault grounds for divorce. Since no-fault grounds were enacted in Pennsylvania in 1980, the majority of divorces have been under no-fault. While a more detailed description of these fault and no-fault grounds will be discussed at a later time, no-fault divorces allow the parties to move more efficiently through the divorce process and focus only on the tangible issues (property, custody and support) without the need to get into the emotional issues (adultery, cruelty etc.).

In the event of a consensual divorce, also known as a 3301(c) divorce, the parties may be able to reach an agreement on the property themselves and only need to hire an attorney to draft the paperwork and an agreement. These kinds of divorces are often done on a flat fee basis and can be very cost effective for those parties who are just looking to move on with their lives.

However, if the financial aspects of the divorce are litigated, then the Court will look to a variety of factors, including the comparative incomes and assets of the parties, the length of the marriage, whether there are children, etc. in deciding on an equitable split of the assets of the marriage that will allow the parties to each maintain a standard of living comparable to that which was enjoyed during the marriage. Not all property is considered marital property and thus not all property is subject to an equitable distribution. Speaking with a lawyer will allow you to gain a better understanding of what your rights are with regards to marital and non-marital property.

Child custody and support

As of early 2011, Pennsylvania courts should no longer use gender as a factor in determining child custody. While obviously this had no effect on same-sex couples, it does show that Pennsylvania was trying to reduce reliance on gender based roles and focus more directly on the best interests of the child. There are 15 factors that a Court should consider in determining the best interests of the child which include items like ability to attend to the needs of the child, and willingness to allow contact with the other party.

However, what has changed under the same-sex marriage rulings is the standing of the non-biological parent. In the past, when same-sex couples were not both able to adopt under the “one mom, one dad” rule, the second parent was at a large disadvantage in the law’s eyes as compared to the biological parent. But now, if the second parent has adopted the child, then they will have equal standing to seek custody and support. Custody cases can be very emotional and draining. It often helps to have an attorney in your corner providing guidance on what to expect throughout the process.


Under Pennsylvania succession laws, there are specific parameters for distribution of wealth if a party dies intestate (without a will). This is a major gain for same-sex couples who now have the ability to inherit as a spouse if their partner dies without a will.  However the estate is subject to a split between the spouse and possible descendants or parents depending on the specific situation. It is recommended that you seek legal advice to help ensure that your spouse is taken care of and that you are able to direct how your assets are allocated should you pass.

While these topics have been discussed with an eye towards same-sex couples, the ideas and principles described are the same for all marriages. This has also been a very brief overview of the rights and obligations that a party can have in family law topics. However, no two situations are ever going to be exactly the same. The Miller Law Group is prepared to meet with you and discuss your specific situation and help find the most efficient way to reach the solution you desire. Contact us today to set up a consultation.

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