Same-Sex Marriage & Family Law Issues
Our Attorneys Know There Is Uncertainty In New Beginnings
On June 26, 2015, the term “gay marriage” – which was allowed only in some states – became obsolete when the Supreme Court decided in the Obergefell v. Hodges case to afford same-sex couples throughout the entire United States with the same opportunity to become legally married that heterosexual couples enjoyed. In essence, marriage is now just marriage so the same laws apply to everyone. However, the Supreme Court’s historical decision was strictly on the issue of allowing marriage and did not address all of the ancillary issues that individuals and families in the community face.
Same-sex couples are inching closer toward true equality in family rights, but the community still faces significant legal uncertainties in this area. From adoption, employment discrimination, division of marital assets in divorce, there is little precedence for Michigan family law issues involving same-sex couples. When legal issues are new, courts and judges sometimes struggle to find an appropriate resolution. It is crucial to work with a lawyer who will build the strength of your case through both facts and sound policy.
Our attorneys understand that the lack of precedence in many same-sex marital issues can create uncertainty. At Schwartz Law Firm, we help our clients secure the best possible outcome. Our lawyer staff includes members and supporters of the community. Learn more about the unique family law issues you may face as a member of the community by reading below.
Planning For Marriage
Many gay and lesbian couples in Michigan have lived together as families for years and now want to exercise the long-overdue recognition of their right to marriage. Although love and devotion are critical pieces to any marriage, there are legal practicalities that may be important for couples to work out before marriage. Same-sex couples, by virtue of being unable to marry until recently, have in many cases maintained separate assets.
It is always wise for any two people who are contemplating a marriage to consider their assets prior to marriage and whether or not they should be protected in the event of divorce. Thinking about a divorce during happy times is often a difficult task. However, the reality is that divorce is not an uncommon occurrence and pre-planning is the best way to not only protect assets but make the divorce process an easier transition in the unfortunate event that it is necessary.
Many in the community recognize the value of prenuptial agreements. A properly executed prenuptial agreement helps clear major uncertainties caused by divorce. Sometimes referred to as “divorce insurance”, it allows the parties to control the fate of many things, including business holdings, debt acquired during marriage and children’s inheritance from prior relationships. Even the custody of a beloved pet – should the marriage end – is often an important issue featured in prenuptial agreements.
Other important issues that need attention before or during a marriage are addressed on our Estate Planning page.
Adoption And Parenting
Adoption is one area where Michigan same-sex couples do not necessarily enjoy all the rights of heterosexual couples. Some private adoption agencies, under the guise of religious exemptions, may still discriminate against people and couples in the Michigan community. This can further complicate a process that is already complex and emotional. Our attorneys work with a network of adoption agencies that are known to not discriminate against the community. If you are considering adoption, the experienced attorneys at Schwartz Law Firm can assist you in the adoption process from beginning to end.
Another potential issue arises when one of the parties in a relationship adopts a child by himself or herself before the marriage, but then both parties raise the child as loving parents. If the relationship ends, each party will likely want rights to continue parenting the child. Without much precedence, courts are more likely to make a mistake. Even a temporary legal mistake can harm the child and/or parents. It is important to work with a skilled attorney as early as possible.
Surrogacy, co-parenting, sperm donation, artificial insemination and in vitro fertilization (IVC) also bring exciting options for gay couples who want children. However, there are underlying legal issues that need be examined closely. For example, a lesbian couple wants to have a child and they seek donor sperm from a close friend. All parties can agree that the donor will or will not have a role in the child’s life and to what extent, but if it is not clearly drafted into an enforceable agreement, there could be serious problems down the road.
In Michigan, marital property is divided equitably upon divorce. The term “equitable” does not necessarily mean equal. Equitable property division can be especially difficult in same-sex marriages if the couple commingled assets, pooled their income and shared debt before they were able to marry. To ensure that you justly receive what is yours under the law, you probably need the close guidance of an experienced lawyer.
Other difficult issues in same-sex divorce include:
- Child custody (discussed below)
- Ownership of business interests
- Division of property, including retirement assets
- Ownership of pets
- Ownership of other items whose value cannot be quantified
An divorce attorney can help you navigate the potential legal conflicts in your divorce.
Child custody in same-sex divorce is supposed to be determined the same way as in heterosexual divorce, but Michigan courts are unfamiliar with many of the complicated issues. This unfamiliarity could lead to a mistake in child custody, support or visitation.
One same-sex child custody conflict could arise when one party was a parent before the relationship or marriage began. Another potential custody conflict may occur when one gay parent shares genes with the child. Will the court favor the parent with genetic ties?
Family Law Attorneys
It is crucial to work with an experienced family law attorney to help ensure that your rights are protected.
At Schwartz Law Firm, our staff of family law attorneys understands the unique issues arising in same-sex marriage and divorce. We do not fear the legal infancy of family law matters. If you partner with us, we will help through your legal issues in family law and/or estate planning.