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Law Office of Gary R. Swavely, Jr. Blog

Saturday, December 23, 2017

Common Family Law Issues for Same Sex Couples

Now that same-sex marriage is just as legal as different-sex marriage in all 50 states, everyone has a right to a legal marriage with their partner of choice. No more having to settle for “marriage substitutes” like civil unions or domestic partnerships. Being able to marry does not, however, solve all the problems that two people can experience. With legalized marriage comes the possibility of divorce and having to sort out the same issues different-sex couples have faced for many years, as well as some scenarios that have been unique to same-sex couples.

If you are considering a same-sex union or divorce, you should seek the counsel of a family law lawyer familiar with same-sex marital issues. For now, let’s explore some common family law issues for same sex couples.

The United States Supreme Court decision in Obergefell legalized same sex marriage in all 50 states. As the Court stated so eloquently:

                “Marriage is sacred to those who live by their religions and offers unique fulfillment

                to those who find meaning in the secular realm. Its dynamic allows two people to

                find a life that could not be found alone, for a marriage becomes greater than just

                the two persons. Rising from the most basic human needs, marriage is essential to

                our most profound hopes and aspirations.”

The Constellation of Constitutional Rights of Same-Sex Spouses

Obergefell protects not just the right to marry, but also all rights related to marriage. The U. S. Supreme Court had to order states to list the names of both spouses on the birth certificate when same-sex couples have a child. We can extrapolate from this decision that states will not get away with denying adoption petitions of same-sex couples, but there may be legal battles before there is national resolution of this family law issue.

Putting a Ring on It Solves Many Previous Family Law Problems

Before same-sex marriage was legal in all 50 states, unmarried same-sex couples had few protections under the law. It was common for these couples to have no spousal legal rights in these scenarios:

  • Child custody. If the couple wanted to have children, often one partner would carry and give birth to the child. That person was the biological parent, and the other partner had no legal rights to the child. If the relationship soured, the biological parent could keep the child away from the other partner, even though the couple had been raising the child together as a family. If the biological parent died and that person’s family did not accept the same-sex relationship, they could keep the non-biological parent from the child. Some couples sought to avoid this inequality by having the non-biological parent become an additional parent through adoption.
  • Health insurance and employer benefits. Before same-sex couples could legally marry, they faced discrimination that robbed them of spousal rights to employer health insurance, pensions, and retirement accounts.
  • Inheritance. If they did not have valid wills, unmarried partners often received nothing if one of them died.
  • Hospital visitation. Intolerant relatives were legally allowed to bar a same-sex partner from visiting his or her partner when in the hospital.

Following Obergefell, there is no logical reason why married same-sex couples will be treated any different in family law situations than married different-sex couples. You should, however, expect many court battles to hash out these issues. To begin with, states will have to change their standard forms that require the name of the husband and the wife for a married couple. Birth certificates, death certificates, home ownership documents, and tax forms are but a few examples of forms that will require changes.

If you have questions regarding same-sex marriage issues, give us a call today to set up a free legal consultation with a Pennsylvania family law attorney today.

 


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