Same-sex Marriage Law (Marriage, Divorce, Custody, and Adoption)

– LAW OFFICE OF DANIEL HUTTO –

Same-sex Marriage Rights in Arizona

In Oct. 2014, a federal court declared the state’s statutory and constitutional prohibitions against same-sex marriage unconstitutional in its decisions in Connolly v. Jeanes, 73 F.Supp. 1094 (2014) and Majors v. Horne, 14 F. Supp. 3d 1313 (2014). When the state decided against appealing the court’s decisions, same-sex marriage became legal in Arizona. The U.S. Supreme Court followed with its decision in Obergefell v. Hodges in June 2015, legalizing same-sex marriage in every state.

Additionally, Phoenix and Tucson both have domestic partnership registries that allow couples to register as domestic partners. Both same-sex and heterosexual couples can register as domestic partners in Phoenix if they meet the following criteria:

• • Live together in a Phoenix residence
  • Age 18 or older and competent
  • Not related to a degree that is prohibited under Arizona law
  • Not married or in a domestic partnership or civil union with a different person
  • Are in a committed relationship

• • At least 18 years old
  • Not related beyond what is allowed under Arizona law
  • Competent
  • Cannot already be in a domestic partnership, civil union, or marriage with someone else
  • Must live together and be in a mutually supportive relationship

Same-sex spouses also qualify for health insurance through their spouses’ employer-provided medical insurance, and they can now file joint federal and state tax returns.

Spouses might also need to change beneficiary designations on their 401(k) and life insurance plans from other to spouse. Same-sex married couples now enjoy any benefits that an employer provides to heterosexual married couples.

Some important changes that people need to be aware of since the legalization of same-sex marriage in Arizona include the coverage by Arizona’s marriage laws in Arizona Title 25 and health insurance coverage.

Same-sex Divorce in Arizona

While couples do not expect their marriages to end when they get married, some same-sex marriages do end in divorce.

A same-sex couple divorce proceeds through the same court processes as a heterosexual couple divorce. However, same-sex couples may have unique issues that may not be faced by heterosexual couples. For example, same-sex couples may have lived together for years before they married and accumulated substantial assets. Because the assets that each spouse brings into the marriage is considered his or her separate property, property division in a same-sex divorce may be problematic.

A same-sex couple divorce proceeds through the same court processes as a heterosexual couple divorce. However, same-sex couples may have unique issues that may not be faced by heterosexual couples.

Same-sex married couples might benefit from drafting postnuptial agreements that dictate how their assets will be divided and address spousal support to alleviate some of these types of problems if a divorce occurs.

Another common issue in a same-sex couple divorce case is spousal support. Like property division issues, couples may have spousal maintenance issues when they have cohabited for years before marrying.

While a couple may have been in a committed relationship for decades before getting married, the spousal maintenance laws may only look at the actual years of marriage rather than considering the period of cohabitation when determining whether spousal maintenance should be ordered, and what its duration should be. This issue might be addressed by an attorney during negotiations to try to secure a fair outcome.

Since same-sex couples have a fundamental right to marry, they also have a right to divorce. Couples who are residents of Arizona may divorce in the state even if they got married in a different state.

If you are in a gay marriage and want to get divorced, it is a good idea to talk to an experienced divorce lawyer who keeps current with the laws that affect marriage, parental rights, and divorces of LGBTQ people. A gay couple divorce lawyer at the Law Office of Daniel Hutto can help you to understand your rights.

Negotiating a full settlement in a divorce is often the best outcome for people who are divorcing. When you work with a same-sex divorce lawyer, you might be likelier to reach a full agreement so that you can avoid costly litigation and obtain a fairer result.

In some cases, a full settlement may not be possible. If a settlement cannot be reached, a same-sex divorce attorney at the Law Office of Daniel Hutto is prepared to litigate for you at trial.

Child Custody and Parenting Time Rights for Same-Sex Parents

When a child is born to an unmarried heterosexual couple, establishing paternity is the step that will need to be completed to secure parenting rights for the unmarried father. Once paternity is established, the father can then pursue legal decision-making or parenting time by filing a petition with the court.

In a same-sex relationship; however, only one of the parents will have enforceable parental rights unless the other parent adopted the child.

Same-sex married couples who go through a same-sex divorce with children may have an easier time establishing their rights as parents. If the children were conceived during the marriage by the agreement of both parents, there will be a presumption that parental rights of both parents should be equally applied for the determination of legal decision-making authority, parenting time, and child support.

Many same-sex couples who decide to have children during their marriage use donor eggs or sperm, donor embryos, or a combination thereof. As long as both parents agreed to conceive a child as their shared child, they both should receive custody or parenting-time rights when they go through a same-sex divorce.

The most important consideration in any child custody case is what is in the best interests of the child. A same-sex divorce lawyer can help you determine the best approach to take when you are embroiled in a child custody dispute with your former same-sex partner.

Same-sex Parent Adoption / Gay Adoption

There are several ways that you can build your family through a same-sex parent adoption in Arizona. The process that you should choose will depend on the circumstances of your particular situation.

Since the Supreme Court’s decision in Obergefell v. Hodges, married same-sex couples have the same rights to adopt children together as other married couples. However, LGBT couples must be married to adopt a child together since second-parent adoptions are not recognized in Arizona.

Here are the adoption processes that are available to same-sex couples in Arizona.

Joint Adoptions for Married Couples

If you are in a gay marriage in Arizona, you and your spouse can go through the same adoption process that other married couples do to adopt a child together. You can complete an adoption by working with an adoption attorney or an adoption agency.

If you want to adopt a child as a married couple in Arizona, you will want to choose a child adoption attorney who will fight to protect your adoption rights as a same-sex couple. Some adoption professionals refuse to work with same-sex couples.

At the Law Office of Daniel Hutto, we are happy to help LGBTQ married couples as they go through the adoption process to build their families.

Stepparent Adoptions for Same-Sex Couples

If you have married someone who already had a child, you can become a legal parent of the child through stepparent adoption. If the child was not adopted by your spouse but was instead conceived and birthed naturally, you will need to have the child’s other parent’s parental rights severed.

There is a very specific process for terminating a parent’s rights before a step-parent adoption may occur. An attorney at the Law Office of Daniel Hutto can explain this process to you.

If your spouse adopted the child on his or her own, the process for completing a stepparent adoption will be the same as it is for heterosexual couples. You will need to be married for a minimum of one year and have lived with the child for a minimum of six months to avoid a social study during the adoption process.

Adopting a Child as a Single Person or as an Unmarried Couple

Unmarried couples in Arizona cannot jointly adopt a child. Arizona does not recognize second-parent adoptions in the state. If you want to adopt a child jointly as a couple, you will need to marry. After you marry, you can either adopt jointly or complete a stepparent adoption.

If you are a single person who wants to adopt, you can do so in the same way that straight single people can adopt children. You must be over the age of 18, complete an adoption home study, pass background clearances, and prove that you are capable of caring for a child.

If you can pass these requirements above, you should be able to adopt a child on your own, regardless of your sexual orientation or identity.

How has Gay Adoption Changed Over the Years?

Because of the political climate today, there is good reason to worry about the future of same-sex adoption laws in the U.S. and Arizona. This makes it important to complete a same-sex adoption as soon as possible to protect your rights to parent a child. There are also other concerns that you might have.

For example, some religious agencies might refuse to work with same-sex couples. You might also worry about whether a prospective birth mother would choose you to adopt as a same-sex couple. Many prospective birth mothers are open-minded and are happy to place a child for LGBT adoption.

Some agencies are more than happy to work with same-sex couples to help them find children to adopt.

There is a final consideration to keep in mind if you are wondering whether to adopt your same-sex partner’s child. If the child is the biological child of your partner or spouse, signing your name on the birth certificate does not automatically confer legal rights to you as a parent.

Your partner or spouse’s biological rights as a parent will be intact, but you will want to work closely with an attorney to ensure that your parental rights are also protected.

An attorney at the Law Office of Daniel Hutto can review your situation and help you to understand whether you should pursue an LGBT adoption of your partner or spouse’s child. He can also help you through the process of terminating the child’s other biological parent’s rights if that option is available to you in a stepparent adoption.

Regardless of the type of adoption process you want to complete, working with an experienced adoption attorney is crucial for determining the right steps to take.