Ohio Judge Mistakenly Grants Divorce to Same-Sex Couple

Same-sex couples can't marry in Ohio, but some might not be able to get divorced there either.

Last week a judge in the state approved a divorce for a couple without realizing the spouses were both women -- and now he says he may vacate the decision.

Athens County Common Pleas Judge George McCarthy gave final approval November 25 to the divorce of Brenda Mohney and Erin O'Leary, who were married in California in 2008, The Athens News reports. He affirmed a decision made by a magistrate November 4, and from the documents presented to him, he did not realize that Mohney and O'Leary were a same-sex couple.

"Ohio goes through great pains to make things gender-neutral [in documents]," McCarthy told the paper. "In looking at the magistrate's decision, it wasn't readily apparent to me that the parties were both women."

If that had been apparent, he probably would not have granted the divorce, he said, and Ohio's ban on same-sex marriage likely invalidates it. Last month the U.S. Court of Appeals for the Sixth Circuit upheld that ban, in the first anti-marriage equality decision from a federal appellate court.

Noting that the case involves a "legal gray area," the News reports that Ohio same-sex couples with out-of-state marriages have seen mixed results when seeking divorces. "Some judges will grant them and some judges won't," Grant Stancliff, a spokesman for LGBT rights group Equality Ohio, told the paper. "For the judges who do, it's not clear kind of where the law fits there because technically in Ohio they don't recognize that marriage at all, so how would you grant a divorce if there's no marriage?"

In the next few weeks, McCarthy plans to hold a hearing in which Mohney and O'Leary can explain why they want a divorce -- it was initially granted on the grounds of incompatibility -- and he can tell them why he will probably vacate the divorce ruling and return them to married status, although their marriage will not be recognized by the state of Ohio.

Even though the judge was uncertain that they were a same-sex couple, other Athens County officials said the documents submitted by magistrate Melinda Bradford referred to both Mohney and O'Leary as women. The documents, however, have columns listing spouses as "Husband" and "Wife," with no provision for same-sex spouses, so O'Leary was listed as "Husband" and Mohney as "Wife." Also, Mohney was present at the hearing before the magistrate, but O'Leary, who has moved out of state, was not, and that may have been another source of confusion.

Mohney declined comment to the News and other media, and O'Leary could not be reached. Meanwhile McCarthy is pondering the situation, he told the paper. "Are they technically divorced?" he said. "I find the entry saying they're divorced, but if they're not permitted to be divorced in the first place, I'm not sure if that judgment gets full faith and credit itself. I can't grant something that's not grantable."