LGBTQ+ Legal Issues FAQs
How can my same-sex spouse qualify for a marriage visa?
Can I bring my same-sex spouse to the US through an employment visa?
Are civil unions or domestic partnerships legally equivalent to marriage for same-sex couples?
Can I seek child support after a same-sex divorce?
Can LGBTQ+ people now serve openly in the military?
Can I provide for my same-sex spouse or partner in my will?
Is same-sex divorce recognized in all states?
How will the IRS treat my civil union or domestic partnership?
Can I be a dependant on my partner’s health insurance policy?
A same-sex spouse would qualify for a marriage visa in the same way an opposite-sex spouse would. In 2013, the Supreme Court of the United States struck down the Defense of Marriage Act (DOMA), the federal law that defined marriage as solely between a man and a woman. This Supreme Court ruling now requires that all federal agencies treat spouses in the same manner, whether they are a part of a same-sex or opposite-sex marriage.
The Supreme Court’s ruling applies to the United States Citizenship and Immigration Services (UCSIS), since it is a federal agency. As a result, marriage visas for same-sex couples will be processed in the same way that marriage visas are processed for opposite-sex couples.
Thus, if you are applying for a marriage visa for your same-sex spouse, you must first either be a United States citizen or a legal permanent resident of the United States. If you are either one of these, you may file what is called an I-130 petition, which is called a “Petition for an Alien Relative.” That petition is processed, along with accompanying documentation, and after receiving a visa number your spouse is eventually called to an appropriate US Embassy or Consulate for the consulate interview, and after a successful interview, a marriage visa, or K-3 visa, is granted.
Yes, an individual whose same-sex spouse has entered the United States on an employment visa may be eligible for a visa to enter the United States as well. If a foreign national individual, who is not a United States citizen, is in the United States to work, he or she will probably have what is called an H-1B visa. This particular visa allows the individual to live and work in the United States because the individual’s employer sponsors the visa and desires the individual’s expertise or work experience.
Individuals living and working in the United States on an H-1B visa may have their spouses and children enter the United States on an H-4 visa. This visa allows a spouse to live and attend school in the United States, as long as the spouse on the H-1B visa is living in the United States. The H-4 visa, however, does not allow the spouse to work while he or she lives in the United States.
In 2013, the Supreme Court of the United States issued a ruling that struck down the Defense of Marriage Act (DOMA). This ruling essentially means that federal agencies must treat same-sex couples the same way they treat opposite-sex couples. Thus, if a same-sex couple marries in a country that recognizes same-sex marriage, making their marriage legal, the spouse of the individual holding the employment visa may apply for an H-4 visa, provided that no other restrictions apply to his or her eligibility to enter into the United States.
In general, civil unions and domestic partnerships are not legally equivalent to marriage. While civil unions and domestic partnerships are methods of formally recognizing same-sex couples, these relationships usually do not confer the same privileges and benefits as marriage does. Marriage confers many more benefits to a couple, particularly on the federal level, including access to domestic relations laws, tax relief, spousal benefits, emergency medical decision-making power, inheritance rights, and the spousal testimonial privilege, than do the civil unions or partnerships.
Civil unions do offer some rights to same-sex couples, such as rights relating to wrongful death and loss of consortium claims, emergency care, and group health insurance. On the other hand, domestic partnerships may provide a fuller range of benefits, depending on the state. Oregon and California, for instance, extend nearly all spousal rights given by the state to unmarried couples in domestic partnerships. However, other states give a limited set of rights to couples in a domestic partnership.
The answer to this question may vary depending on where you reside and on whether you are considered the legal parent of the child or children at issue. If you are the legal parent of the children of the marriage, whether biologically or through adoption, the courts of the state in which the divorce is pending will generally determine child custody and support matters upon adjudicating the divorce just as they would for an opposite-sex couple that is divorcing. It is important to consult a local attorney because your legal status, or lack thereof, as a parent of the child may affect your rights related to support for the child upon divorce.
Certain members of the LGBTQ+ community can now openly serve in the military. Prior to September 2011, this was not the case. In 1994, “Don’t Ask, Don’t Tell” was a policy, officially adopted by the military and later codified into law, which prohibited gay and lesbian service members from openly disclosing their sexual orientation. Under this policy, if service members revealed that they were, in fact, lesbian or gay, they were subject to being discharged from the military.
However, as of September 2011, President Obama and Congress, with the approval and cooperation of the Secretary of Defense, agreed to repeal “Don’t Ask, Don’t Tell.” Now, individuals who are openly gay and lesbian may serve in the military without fear of discharge. Furthermore, service members who were previously discharged under “Don’t Ask, Don’t Tell” now have the opportunity to re-enlist. While gay and lesbian individuals may serve in the armed forces, federal policy with regard to transgender individuals remains somewhat unclear. The Trump administration is attempting to largely ban transgender individuals from serving following the Obama administration’s 2016 announcement that transgender service members would be allowed to serve openly, though the Trump policy is being challenged in court.
Yes, you can provide for your same-sex spouse or partner in your will. In fact, establishing a will is highly recommended for same-sex couples, whether married or unmarried, to protect against legal challenges from family or other individuals who would take property away from the deceased’s significant other, against the true, but perhaps unarticulated, intentions of the deceased partner.
If an unmarried individual in a same-sex relationship dies intestate, meaning without a will, the law will not consider the significant other as next of kin, and the deceased’s family may have a legal claim of right over the same-sex partner, despite the deceased’s actual intentions.
With the legalization of same-sex marriage in all 50 states and the District of Columbia after the US Supreme Court’s opinion in Obergefell v. Hodges, divorce is also recognized for same-sex couples in all jurisdictions. However, divorce can often be more complicated for same-sex couples due to the evolving nature of relationship recognition for same-sex couples in the US in recent decades. The dates and types of any previous legal relationship a couple may have had prior to a legal marriage, such as a civil union, domestic partnership, or marriage in another country, can significantly impact the dissolution. Working with a lawyer experienced in LGBTQ+ legal issues can be helpful in navigating these complexities.
The federal government, including the IRS, does not view civil unions or domestic partnerships as having the same legal status as marriages. Thus, if you are in a civil union or domestic partnership, you do not have the option of filing taxes jointly with your partner, and you must file as a single individual. In 2013, the Supreme Court of the United States ruled that all federal agencies, including the IRS, are required to treat same-sex married couples just as they would treat opposite-sex married couples. As a result, same-sex couples who are married may file their taxes jointly as a married couple. However, this option of joint filing does not extend to civil unions or domestic partnerships.
Whether you can be a dependent on your partner’s health insurance policy depends on many varying factors, including whether your partner’s employer is public or private, the nature of your relationship (whether you are unmarried, married, or have entered into a civil union or domestic partnership), and also the state in which you live.
If you are in a civil union, your eligibility as a dependant on your partner’s health insurance policy depends in part on whether the employer is public or private. In Illinois, for instance, all state, county, and municipal employers must extend the same employment benefits to partners of civil union as they would to spouses.
If a private employer is regulated by state insurance laws, the employer may be required to extend health coverage to civil union partners if the state requires the extension of benefits to civil union partners. If the private employer is self-insured, however, the entity is governed by ERISA, a federal law that does not mandate health insurance coverage to civil union partners. However, a private employer may choose to extend full health insurance benefits to same-sex partners in civil unions.
Additionally, employers may offer a domestic partners benefits program. Through this program, the same-sex partner of an employee may be eligible for insurance coverage as a dependant if the couple is in a domestic partnership. The extent of domestic partner benefits offered by a public employer will vary depending on the state. A number of states and districts recognize domestic partnerships, including California, Oregon, and Washington, D.C. While a domestic partner may not receive all of the benefits from a federal employer, some benefits are available to same-sex domestic partners, such as the Federal Long Term Care Insurance Program. As with civil unions, private employers governed by ERISA are not required to extend health insurance benefits to same-sex partners of domestic partnerships, but they may choose to do so.
Following the US Supreme Court’s 2015 decision in Obergefell v. Hodges, employers are generally offering the same benefits to same-sex and opposite-sex spouses. However, inequities may remain with regard to benefits for married couples in some areas depending on the jurisdiction and coverage type at issue.
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