Family Law and Divorce for Same-Sex Couples
Historically, family law and divorce for same-sex couples has been a complicated area due to substantial differences between states in recognizing same-sex marriage. This area of law has been somewhat simplified by the 2015 Supreme Court ruling in Obergefell v. Hodges, which legalized same-sex marriage across the nation.
Same-sex marriages are now lawful in every state. The Supreme Court held that the right to marry is fundamental under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. While religions can continue to teach that same-sex marriage is wrong, the State cannot bar any same-sex couple from marriage. Same-sex marriages that occur happen on the same terms as the marriages of opposite-sex couples, and families that have same-sex parents theoretically have the same legal rights as opposite-sex parents, though some states and municipalities continue to attempt to withhold access to equal rights for same-sex parents.
Domestic Partnership & Civil Unions
You may be wondering whether domestic partnerships and civil unions will continue now that same-sex marriages are recognized nationwide. No protection was given to unmarried same-sex partners in Obergefell.
When and where same-sex marriage was not legal before Obergefell, some states allowed domestic partnerships and civil unions, which gave certain rights to same-sex couples. In some cases, domestic partnerships, for example, allowed partners to obtain healthcare benefits from a partner’s employer. Civil unions also sometimes provided specific rights with respect to inheritance, hospital visitation and guardianship.
Since Obergefell, however, many employers are phasing out domestic partnership benefits, which can be hard to administer and have negative tax implications. Where they offer benefits for opposite-sex spouses, they are replacing the phased-out benefits with spousal benefits for same-sex partners. This can present challenges for same-sex couples that don’t want to marry, but still want to have the benefits they previously had with domestic partnerships.
Same-Sex Parenting & Adoption
Across the nation, if a legally married couple has a child during their marriage, they are both presumed to be legal parents of the child. This presumption now applies to same-sex parents, regardless of the state you live in. If you were not married when you had a child with a same-sex partner or you remain unmarried, it may still be a good idea to use second-parent adoption or a parentage judgment to establish a legal relationship with your child. Indeed, some organizations still advise all same-sex married couples to take this step to protect their parental rights regardless of when they became legally wed. In second-parent adoption, someone can adopt his or her partner’s child. This will ensure same-sex parents have equal legal status with regard to important parenting decisions that opposite-sex parents do. In some states, same-sex married parents may face challenges under state law in putting both of their names on a child’s birth certificate, even though their marriage is constitutional.
Before Obergefell v. Hodges, some same-sex spouses found it difficult to get divorced. While states that recognized same-sex marriages also granted same-sex divorces, in states that didn’t recognize same-sex marriages, same-sex divorces were also not permitted. Couples could move to another state in order to obtain a divorce. However, making matters more difficult, you generally need to live for a certain period of time in a state before a divorce can be granted. This made it difficult for an out-of-state same-sex spouse to get a divorce. Now, all states are required to issue marriage licenses to same-sex couples, and must grant divorces to same-sex couples on the same basis as they grant them to opposite-sex couples. Each state’s residency requirement for divorce is different, and you will need to meet those requirements regardless of your sexual orientation.
Child Custody & Support for Same-Sex Parents
Each state follows its own rules about child custody in the event of a divorce. If you are a legal parent (because you had your child during marriage, you adopted your child, or obtained a parentage judgment), you have equal rights to seek custody or visitation as any biological parent. In many states, where a same-sex partner has parented a child, he or she has had the ability to ask the court for visitation or custody. However, a legal parent has more rights than one who has acted as a parent, but never obtained any sort of legal acknowledgement of a relationship to the child.
A parenting agreement does not have the same power as other mechanisms to enforce your parenting rights, but it could influence a court’s child custody or visitation decision, depending on the jurisdiction.
LGBTQ+ Legal Resource Center Contents