AZ Asks Cynthia Hatfield: What concerns should couples of same-sex relationships expect to encounter during a divorce?

Cynthia Hatfield has practiced law in Greensboro, North Carolina for 24 years.  She received her law degree from the University of North Carolina at Chapel Hill and her undergraduate degree from Dartmouth College. Her primary concentration is Family Law, which includes child custody and mediation, a practice she fully supports. She is devoted to helping her clients preserve and protect their rights when going through divorce. You can reach Cynthia at (336)273-0589 or hattette@aol.com. Her office is located at 219 W. Washington Street, Greensboro, N.C., 27405.  

What are the different issues that arise in same-sex breakups vs. straight divorces?

Same-sex breakups raise many issues that are different from those arising in straight divorces.  Unmarried or unregistered couples negotiate with few well defined legal rights and without any mandatory court process.  They must rely on implied or oral contract claims of limited viability; this challenges mediators to operate in a world not only of unfamiliar social relationships but of legal uncertainty.  In North Carolina, even gay couples legally married in other states are not able to utilize the statutes and case law governing straight married couples’ separation and divorce.  This leaves gay couples subject to property division through partition proceedings and contract law that is not really suited for this task.

Has the legal framework for same- sex dissolutions changed in the past ten years, if so in what ways?

The legal framework for same-sex dissolutions has changed dramatically in the past ten years.  In Maine, Vermont, New Hampshire, Massachusetts, Connecticut, New York, the District of Columbia, New Jersey, Iowa, Washington, Oregon, Nevada , California and Canada they are allowing same-sex couples to marry regardless of their residency.   Marriage is now an option for gay couples living anywhere –there is however some uncertainty as to whether other states will recognize such marriages.  A current summary of the marriage rights for same-sex couples can be found at www.lambdalegal.org.  In North Carolina, since the state does not acknowledge gay marriage, gay married couples cannot file for divorce and may only sever their legal ties through annulment.

Now that many same-sex couples have children together, how are those disputes legally resolved?

Traditionally, there have been two ways of establishing parentage; birth or adoption.  Today, we need to take egg donation, sperm donation, and surrogacy, all of which are generally based on contract law and seek to change this fundamental precept of family law.  For same-sex parents disputes usually arise due to three situations:

  1. Two adults functioned as parents, but only one is a legal parent
  2. A more complicated problem arises when there is a third party (sperm or egg donor, surrogate mother or involved family member
  3. The couple obtained a legal document rendering them both parents but one partner is trying to dispute this arrangement.

Fortunately, approximately half the states now recognize parentage based on parental conduct and significant bonding with the child.  There may be “equitable” parents, “presumed” parents, or “psychological” parents.  In the other half of the states, if no adoption has been completed the biological parent will be the sole legal parent.  In North Carolina, it is not possible for a same sex couple to share parental rights through adoption.  But recently the Courts have granted same sex partners joint custody when the parent with legal rights to the child clearly acted to give the other partner a permanent role as a co-parent.

How and where can same sex-couples go to find information regarding their rights when dissolving their relationship?

The best place to start is to consult an attorney in your area that practices primarily family law. The law in this area is evolving quickly, and there is no substitute for talking to a professional who deals with these issues frequently. They will be able to address your particular situation. Any gay couple living together should consider entering a contract to govern their rights and commitments legally. This is especially true of a couple buying a home together or co-parenting a child. This can save later litigation in the event of a break-up and also protect from unintended consequences in the event one partner becomes incapacitated.

Cynthia Hatfield is not affiliated with Zuraw Financial Advisors, LLC.

About Ann Zuraw

Ann Zuraw, the voice behind "Chicks, Chat and Change", is a Certified Financial Planner (CFP®), Chartered Financial Analyst (CFA®), and Certified Divorce Financial Analyst (CDFA™).If you have comments on this post contact Ann Zuraw

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