In the wake of two recent United States Supreme Court decisions, Obergefell v Hodges and United States v Windsor, marriage equality has become a fundamental constitutional right. Accordingly, many same-sex couples have wed in the months since these landmark cases were decided by the SCOTUS.
A 2012 census estimates there are approximately 650,000 same-sex couples sprinkled throughout the nation. There are about 1050 federal laws that involve some form of benefit or status bestowed upon married couples.
Given the new-found right to wed, some same-sex couples sadly are already calling it quits in light of irreconcilable differences. Our law firm has experience in negotiating equitable settlements in such circumstances.
When a same-sex couple divorces, they now face the same issues as a traditional family: child custody; a parenting plan for when one household becomes two; child and spousal support concerns; and an equitable property division. Because the constitutional right to wed was only very recently recognized by the SCOTUS, however, same-sex couples have deployed a variety of legal “work-arounds” when structuring their family units over the past several decades.
These “work arounds” could complicate same-sex divorce proceedings over the next decade. For example, until now, prenuptial agreements were not recognized when executed by a same-sex couple because an intimate [unmarried] relationship could not provide the basis for an enforceable contract.
Another example is how same-sex couples acquired children; usually through adoption. In a traditional marriage, child support obligations were present in divorces involving minor children. For non-traditional couples, support issues arose in the adoption context; now, this issue can be resolved with a more conventional analysis.
Until now, same-sex couples had no rights as a survivor to their partner’s social security benefits, COBRA health insurance coverage, pension, 401(k) plan, veteran’s benefits or other similar benefits. Now, in the wake of the SCOTUS recognition of same-sex marriage, a divorcing partner will have access to these rights and benefits.
Like federal laws, the laws here in the State of Michigan also provide a constellation of benefits for married couples. Within the scope of those legislated benefits is the right to the protection of children and families; now those rights under law attach to same-sex married couples.
Despite the undisputed gains from the High Court’s recognition of marital equality, the law regarding same-sex families is changing rapidly; this area is highly uncertain and complex. One of the more cutting-edge areas to be addressed is the new-found freedom of same-sex couples to execute prenuptial agreements [which are now enforceable] and estate plans as a married couple.
Not all same-sex couples will wed, even in light of the above-referenced SCOTUS decisions. When an un-wed same-sex couple acquires children, either through surrogacy or adoption, one parent usually has no biological connection to the child. If such a couple breaks-up, legal issues involving custody and parenting time will be present.
If you or a loved one face some of the issues involved in same-sex divorce, consider giving our firm a call to discuss your options.