Though same-sex marriage is legal at the federal level, LGBTQ couples must consider key issues when navigating the ins and outs of marriage.
First, let’s break down how LGBTQ family law works.
What is LGBTQ Family Law?
In 2015, Obergefell v. Hodges established the fundamental right to marry for same-sex couples across all fifty states. The case was huge for the LGBTQ community, and the law is slowly adapting to address the specific needs of same-sex couples.
LGBTQ family law is distinguished from other family law in that it deals with the unique legal aspects of a same-sex relationship or family. These include adoption, estate planning, cohabitation agreements, surrogacy agreements, child custody arrangements, and divorce proceedings.
Importance of Working with an LGBTQ Family Attorney
When planning an LGBTQ marriage, it’s vital to work with an attorney that has experience with the unique complexities of your relationship. Hiring an LGBTQ family law attorney ensures that you and your family are treated fairly and protected to the fullest extent possible.
An LGBTQ family lawyer will be able to walk you through legal matters like adopting children and/or joining families, the legal recognition of your partnership, estate planning options, the creation of surrogacy agreements, and the right to make medical decisions for one another.
Prenups for LGBTQ Couples
Your journey to fair legal protection starts even before you’re even married.
A prenuptial agreement is a legal document established before your wedding that outlines how assets are divided in the event of death or divorce. It’s your number one tool to set parameters around your marriage and protect both yourself and your family down the line.
Why is it Important for LGBTQ Couples to Get a Prenup?
Same-sex couples tend to marry later in life and are more likely to have built up their finances and assets over time. This is especially true of those in a long-term relationship predating the Supreme Court decision. This means there is often more “on the line” to protect.
Without specifying how your assets and debts will be divided, your state’s default laws will kick into effect. Establishing your own prenup ensures everyone walks away with a fair, mutually determined deal.
People are quick to label prenups as “unromantic.” The truth is that establishing a prenup is the first exercise in honest and open communication with your partner. Considering each other’s needs for future protection is one of the best ways to show that you care for one another.
BEFORE getting married, what conversations about MONEY should you have with your partner?
Use this guide to discuss budgets, assets, debts, goals, joints bank accounts and more.Get the guide
LGBTQ Family Law and Family Planning
If you and your partner are planning to start a family, planning ahead is imperative.
Generally speaking, your legal path to family planning is impacted by three main factors: what state you live in, your intended path to parenthood, and the status of your relationship.
1. State Laws
Family planning laws for same-sex couples hinge largely on where you live. Check out the Movement Advancement Project for a state-by-state breakdown of adoption, foster care, and ART (assisted reproductive technology) laws.
2. Adoption, Donation, and Surrogacy Laws
Whether you are considering sperm, egg, or embryo donation, surrogacy, or adoption, start by researching legal requirements.
For example, using an anonymous donor through a sperm bank will typically satisfy most legal requirements. But if you’re hoping to use a known donor, check all the necessary boxes, especially if you don’t want that person legally recognized as a parent. States such as Kansas and New Jersey require a written agreement establishing the rights and responsibilities of the involved parties in these scenarios.
Obergefell v. Hodges was a game changer for adoption and foster care. As a result, same-sex couples can legally adopt or foster a child in every state.
But even with this landmark decision, some states have introduced “religious freedom” laws that allow child welfare providers to discriminate against LGBTQ couples on the basis of religion.
An LGBTQ lawyer can help you anticipate these roadblocks and establish the best plan of action.
3. Relationship Status
It probably won’t come as a surprise that the “religious freedom” laws mentioned above can keep you from expanding your family — sometimes regardless of marital status. This still makes it harder for those not legally married or single.
Being legally married is necessary to adopt a child and/or be recognized as a legal guardian.
Family planning as an LGBTQ couple might seem complex, but with the right LGBTQ family attorney, you can dispel much of the mystery around these complications.
Divorce for LGBTQ Couples
Legally, there are some key differences in divorce between LGBTQ and heterosexual couples. The good news is that most courts have gotten with the times and done away with basing spousal support on outdated gender roles. However, things get trickier when it comes to child support and custody.
To be eligible for custody, the non-biological parent in a couple must legally adopt the child. Without this, they stand to lose their relationship with their kid, no matter how long they have parented them. If a divorce is particularly messy, this opens the door for the biological parent to assume full custody of the child.
Similarly, you won’t be required to pay child support if you’re not considered a legal parent. This can be devastating for the biological parent if they’re left to raise their child alone. Compare this to heterosexual couples, who are automatically eligible for custody and support as biological parents.
The main takeaway is that it’s important to be proactive and legally adopt your children. This helps avoid potential heartbreak down the line.
What do you need to know BEFORE getting a divorce?
Use this step-by-step guide to review custody & visitation, child support, spousal support, assets & debts.Get your free guide
Final Thoughts on LGBTQ Family Law
It’s been nearly a decade since the Obergefell v. Hodges supreme court ruling, but LGBTQ couples still face unique challenges when entering into a legal partnership.
An LGBTQ lawyer is your first line of defense against the confusing jargon and potential discrimination you might face as a couple.
Most importantly, an LGBTQ family attorney helps remove the barriers to family planning and equips you with the necessary tools to enter a loving and supportive marriage.
I’m passionate about helping couples achieve their goals and have proudly helped dozens of LGBTQ couples find successful unions in California. Feel free to book some time with me to discuss your objectives and build a plan to achieve them.