Common Pleas Judge George McCarthy recently vacated his November judgment to grant two women what was possibly the first same-sex couple divorce in Ohio’s history. Apparently they did not take a pre-marriage class which would have prevented the trouble they are going through now. Moreover, the Athens County judge observed when vacating his previous divorce decree that his court lacked subject matter jurisdiction to grant a divorce to parties that are not deemed to have a valid legal marriage under Ohio law.

An invalid divorce decree in Ohio

According to Dayton Ohio divorce attorneys and other legal experts, the two women, Brenda Mohney of Nelsonville and Erin O’Leary of Athens, who remained technically divorced for less than a month are now back to where they started. The couple was married in California in 2008 where same sex marriages were recognized. However, the marriage is not considered legally valid in Ohio, which led Judge McCarthy to vacate his divorce judgment.

Apparently they should have remained in California. Why not just return to California and obtain the divorce?

Gender confusion

The plaintiff in the divorce proceeding, Brenda Mohney, was the only one to show up at a hearing under Athens County Magistrate Melinda Bradford, which was held in early November. However, Judge Bradford was made aware during the proceedings that O’Leary was a woman. According to the divorce suit filed in July, Mohney’s name appeared as the ‘wife’ while O’Leary’s name appeared in the ‘husband’ column.

Understandably, there was some confusion initially about O’Leary’s gender given that her first name was Erin. Court documents indicate that both Mohney and O’Leary used the title Ms. in front of their names where Judge McCarthy had signed in November, making the divorce final the first time.

No one to blame in particular

According to McCarthy, no one in particular was at fault for initially granting the same-sex couple a divorce. He said the timeline, the magistrate’s approval of the divorce a few days before a 6th Circuit Court of Appeals decision reaffirmed Ohio’s ban on same-sex marriages, was unusual.

The judge said he was aware of a few instances where divorces for same sex marriages were granted by Ohio county judges especially in Franklin, Summit, and Cuyahoga counties. In his judgment that vacated the Mohney/O’Leary divorce decree, McCarthy observed that Ohio law clearly barred the court from recognizing the California same-sex marriage.

Court documents indicate that two hearings were held in December in which McCarthy invited both parties to talk about their situation and the reasons why he was likely to vacate the judgment. He said he was in favor of giving them a chance to explain their positions. However, O’Leary failed to appear at either of the hearings.

According to Dayton Ohio divorce attorneys following the case, the judge had earlier said that either party could appeal to Ohio’s Fourth District Court of Appeals for a review of the judgment vacating the divorce. The judge observed that the couple’s lack of a valid marriage license in Ohio did not give his court the legal jurisdiction to rule on granting a divorce. McCarthy said the decision to vacate the decree was not any personal viewpoint or bias for or against any of the parties or their relationship.