Overview of Same-Sex Family Law

Same-sex couples in the U.S. have the right to marry and divorce, just like heterosexual couples. The U.S. Supreme Court established marriage equality in its 2015 landmark case Obergefell v. Hodges.

Obergefell gives members of the LGBTQ+ community the same spousal rights as opposite-sex couples. Same-sex parents also have the same rights and responsibilities when it comes to child custody and child support.

However, same-sex married couples still face unique challenges in family law. Same-sex couples can face challenges in adoption and establishing parentage when using assisted reproductive technology (ART). Family equality for the LGBTQ+ community is an evolving legal landscape. For more information about your legal rights, talk to a local same-sex family law attorney.

What Is Same-Sex Family Law?

Family law deals with legal issues in families and the resolution of family disputes. Types of family law cases include marriage, child custody, child support, adoption, divorce, and domestic violence.

Many family laws were designed and developed based on opposite-sex relationships. As LGBTQ+ individuals have gained legal recognition, same-sex couples have many of the same legal rights as other couples in family law.

However, same-sex families still face challenges in family law, including adoption, parentage, and child custody.

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Marriage, Civil Unions, and Domestic Partnerships

Same-sex marriage only became legal nationwide in 2015 following the U.S. Supreme Court ruling in Obergefell v. Hodges. Obergefell struck down the Defense of Marriage Act (DOMA) as unconstitutional. DOMA limited marriage to between a man and a woman. The Court ruled that same-sex couples have the legal right to marriage in all states.

Before Obergefell, marriage laws varied widely by state. Massachusetts was the first state to recognize same-sex marriage in 2003, and other states followed. Other states developed alternative legal recognitions for same-sex couples, including civil unions and domestic partnerships. These arrangements provided some civil rights for same-sex couples, such as property rights, healthcare benefits, and hospital visitation. However, it was not the same as full marriage rights.

Since the legalization of same-sex marriage, most states have done away with civil unions and domestic partnerships. However, a few states still have this option for limited purposes. For example, New Jersey provides domestic partnerships for older people (62 or older) for partners to make medical decisions, estate planning, and tax benefits.

Navigating Divorce and Separation

State laws give divorcing couples the same legal protections and rights, regardless of sexual orientation. Couple can decides how to divide their property in a divorce agreement. If they cannot agree, the court will divide the property based on state laws.

States generally base property rights for divorcing couples on either equitable distribution or community property.

In equitable property states, the courts divide the property fairly between the spouses. Equitable does not necessarily mean equally. The court considers different factors when dividing property, including:

• How long the couple is married
• Child custody
• Earning potential
• Contributions to the marriage
• Spousal support awards

In community property states, most property and assets acquired during marriage become the couple’s joint property. Any debts acquired during marriage are shared debts. Property acquired before the marriage, inheritance money, and gifts to one spouse are separate property, and each spouse keeps their separate property.

Child Custody and Visitation Rights

If both partners in a same-sex relationship have legal parenting rights over their children, they will still be their legal parents after a divorce. Parental rights continue regardless of marital status.

In a same-sex divorce, the parents have to decide how they want to divide time with their children. There are different options depending on where the parents live, the age of the children, and how the parents get along.

Generally, it is in the best interests of the parents and the children if the parents decide child custody and visitation schedules. If the parents can’t agree on who gets custody of the child, the court may send the couple to child custody mediation.

Mediation uses a third-party mediator to work with the parents to come up with their own custody agreement. Mediation is also less adversarial than court litigation. This helps parents work together when they have to continue co-parenting for the child’s benefit.

If the parents cannot resolve their disputes, the court determines custody and visitation. The court makes custody decisions based on the best interests of the child. Most family courts understand the importance of a child spending time with both parents.

Adoption and Establishing Parentage

Adoption is one of the areas where there is still differential treatment between opposite-sex and same-sex parents.

Same-sex adoption is legal in all states. However, religiously affiliated adoption agencies can discriminate against prospective adoptive parents based on their religious beliefs. In some states, even state-funded child placement agencies can refuse adoptions to same-sex couples based on religious beliefs.

When same-sex couples go through an international adoption, they have to follow the laws of the child’s home country and state adoption laws. Some countries prohibit same-sex couples adopting a child.

Establishing parentage is the legal process of determining who the legal parents of a child are. Parentage can depend on how the child was conceived, which parents acknowledge parentage, and state law. The birth parent is generally one of the legal parents. For married couples, there is a presumption the married partner is the other other legal parent.

The non-birth parent can also establish parentage through voluntary acknowledgement at the time the child is born. If there are disputes about who is the other biological parent, the court can establish parentage through DNA testing.

When same-sex partners adopt a child, the biological parents must give up parenting rights before the non-biological parents become the child’s legal parents. If an LGBTQ+ parent has a child and later marries, their partner can become the child’s other legal parent through a stepparent adoption.

The Importance of a Family Law Attorney

Same-sex family law disputes can be challenging. The people involved may have known each other or lived together for years. They may also continue living together or staying in contact after the dispute. These are often emotional cases with a lot at stake. A family law attorney can help you navigate the family court process.

An attorney can explain your legal options and help you protect your property and your family. You may want to avoid going through family court to resolve your issues. There are alternatives to court, including mediation and cooperative law. Family law mediation is a common way to resolve disputes and avoid the cost, time, and tension of litigation.

For more information about your legal rights in a divorce, adoption, or child custody dispute, talk to a same-sex family lawyer.