Family Law

Family Law and Same-Sex Couples

Key Takeaways

  • Same-sex couples can be legally married in all states since a 2015 Supreme Court ruling.
  • Same-sex marriages and divorces are handled the same as opposite-sex couples.
  • The court decides child custody cases in the best interests of the child, regardless of the sexual orientation of the parents.

Since the historic 2015 US Supreme Court ruling, Obergefell v. Hodges, same-sex couples can legally marry in all 50 states. Other family law rights have followed. The rights of same-sex couples in family law are pretty much the same as for heterosexual couples. However, same-sex couples may still face challenges in family law issues.

For information about your family laws in your state, it is always best to speak with a local family law attorney.

Same-Sex Marriage

Regardless of sexual orientation, couples may get legally married in all 50 states. This also means that if same-sex spouses need to terminate their marriage, they can go through a same-sex divorce. Same-sex divorce is available in all states as well.

This wasn’t always the case. Many states still have laws on the books that prohibit same-sex marriage or recognition of such if the marriage occurred in a state where it was legal. However, this all changed after Obergefell v. Hodges. In this case, the Supreme Court case legalized same-sex marriage in all 50 states. The Court also required states to recognize same-sex marriages from other states. LGBTQ+ couples are no longer limited to civil unions to have legal rights.

This means those laws will come back into effect if Obergefell gets overturned. This would be similar to when Roe v. Wade was overturned in 2022.

Same-Sex Relationships and Divorce

Marriage equality also means divorce equality. The divorce laws of your state will apply to all couples, regardless of sexual orientation.

After same-sex partners legally marry, they are also able to seek a divorce. The divorce process is the same for same-sex couples. Couples must consider property division, debt division, child custody, child support, and alimony. If the couple can’t agree on a divorce settlement, the family law court will decide.

Adoption for Same-Sex Couples

Yes. All states now allow for same-sex couples to adopt a child. Each state’s laws will vary on the requirements to adopt a child, regardless of sexual orientation.

However, some private organizations may have separate requirements. Religious organizations may limit potential adoptive families. They may restrict participation with single people, unmarried couples, and same-sex couples. International adoptions can also be more difficult for same-sex couples. Some countries will not allow you to adopt as a same-sex couple.

Other Parenting Challenges for Same-Sex Parents

Same-sex couples may have other considerations with adoption and parenting. This can be more complicated with surrogacy or reproductive technology, like in vitro fertilization (IVF). Once the child is born, the biological parent and legal parent may be listed on the birth certificate.

The non-biological parent must adopt to be recognized as the other legal guardian. The second-parent adoption process is similar to when married couples undergo a stepparent adoption.

Child Custody and Same-Sex Couples

Once the parental rights of each parent are established, each parent will have custody rights. The legal issues in these cases are the same as non-LGBTQ child custody cases. Separating parents will deal with legal custody, parenting time and visitation, and child support.

Both the adoption and child custody processes are still based on the best interest of the child standard. The court’s decision will always make this standard the top factor. The child’s best interests are more important than the parents’ marital status. This is the same for parents in domestic partnerships or other co-parenting relationships.

Same-sex families sometimes present unique issues in family law. Opposite-sex families face some of the most common legal issues in the same way as same-sex couples. Family law matters in family court can be complex and stressful, regardless of sexual orientation. Consult an experienced family law attorney to assist in your family court issues.

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