A lawsuit filed in Greenville County Family Court will be the first volley in a new assault on South Carolina’s ban on same-sex marriage and could have legal implications nationally, the attorney who filed it says.
Attorney John Reckenbeil filed the action on behalf of Cathy Swicegood, who is seeking alimony and division of property she owned jointly with Polly Thompson, according to documents filed with the suit.
The couple lived together in Mauldin for 13 years before splitting up in December, according to the suit. The case hinges on a request that the court treat them as a common law married couple.
Reckenbeil said he expects the Family Court to dismiss the case on grounds of the state law, but he plans to appeal to federal court.
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“This case has the legal opportunity to bring our nation closer to solidifying the equal protection of our laws to every American regardless of sexual orientation or marital status,” he said.
Thompson’s attorney, Margaret Chamberlain, said the lawsuit is “horribly misguided” because the two weren’t married.
“They did not mutually agree they were married, they did not hold themselves out as married. They did not both think they were married,” she said.
“If they wanted to get married they could have. They knew how.”
Same-sex marriage is legal in 17 states and the District of Columbia, according to the National Conference of State Legislatures. South Carolina is one of 33 states with either a law or constitutional provision against same-sex marriage.
The lawsuit says Swicegood and Thompson “exchanged and wore wedding rings” and were considered to be married by their families, friends and community. They had a joint checking account and named each other as beneficiaries in their wills, the suit says.
Swicegood had been covered on Thompson’s health insurance through her employment, according to the suit. Reckenbeil said after a divorce between married couples, a spouse who is covered on their spouse’s policy can get continued coverage for 18 months under the federal COBRA program.
But in order to qualify, there must be a “qualifying event,” such as a divorce, he said. Since they weren’t legally married, Swicegood doesn’t qualify under COBRA, he said.
In making a case that the couple should be deemed common law married, the lawsuit includes copies of deeds to property they owned together on Lake Hartwell and Hilton Head worth nearly $400,000, and investment funds totaling nearly $300,000.
The suit says Swicegood is “not capable of supporting herself independently” and believes she should be awarded alimony and sole possession of the Lake Hartwell property, with Thompson being responsible for keeping up mortgage payments.
Joint property ownership isn’t indicative that they were married, Chamberlain said.
“This is not the right case to try to challenge the ban on same-sex marriage,” she said. “The ban on same-sex marriage is morally repugnant. It’s unconstitutional. But frankly it’s irrelevant in this case.”