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FAQs Regarding Same-Sex Relationships

If we were legally married in a state that recognized same-sex marriage before the Obergefell v. Hodges decision, do we have to get remarried?

No. In Obergefell, the Supreme Court held that same-sex couples have the right to marry and the right to have their marriages recognized in all states. And if you were legally married in one state that allowed same-sex marriage prior to Obergefell but you were, at that time, living in another state that did not allow same-sex marriage, your marriage must now be legally recognized.

I had a civil union but now that marriage is legal in the United States, I want to marry someone else. Can I do so?

You must first dissolve your civil union before you can marry someone else. The same would be true if you had a registered domestic partnership. You should seek advice in the state where you obtained your civil union or registered domestic partnership to find out what is needed to dissolve it prior to getting married. If you do not dissolve your prior civil union or domestic partnership, you would be guilty of bigamy. If you wanted to marry the person you were in a civil union with, you would be able to do so without dissolving the civil union or registered domestic partnership.

I am in a domestic partnership. Do we need to get married in order to obtain federal benefits?

Yes. The Obergefell decision ruled that it was unconstitutional to ban same-sex marriage and to refuse to recognize a same-sex marriage that was legally entered into in a state that allowed same-sex marriage. However, the Obergefell decision did not automatically convert domestic partnerships or civil unions into marriages. While a domestic partnership provides certain benefits at the state level, it still does not entitle you to federal benefits. In order to file joint tax returns or receive Social Security benefits available to spouses, you would need to be married.

We were married prior to Obergefell and are now getting divorced. What date will the court use to identify and divide our assets: the date we got married or the date of the Obergefell decision?

Since Obergefell not only ruled that it was unconstitutional to ban same-sex marriage but also ruled that all states must recognize same-sex marriage, the date you were married will be used.

We were married before the Obergefell decision and now want to get divorced. Do we have to go back to the state we were married in to do so?

Not anymore. Prior to Obergefell, married same-sex couples residing in states that did not recognize same-sex marriage had to move to a state that recognized same-sex marriage in order to be divorced. After Obergefell, same-sex marriages must be recognized in all states, so you can divorce where you currently live so long as you meet that state’s residency requirements.

My partner is pregnant and we plan to raise the child together, but we do not want to get married. What should I do to make sure that I am also a legal parent?

If you don’t plan on getting married, you should do a “second-parent adoption” if it is permitted in your state. A second-parent adoption will afford you the same rights as the biological parent and does not terminate any of the biological parent’s rights. If your state does not allow second-parent adoption, you and your partner should prepare a parenting or custody agreement that specifies that, although one of you is the legal parent, you both consider yourselves to be the child’s parent. Your agreement should state that you intend to continue to co-parent even if your relationship ends. Your partner should also make sure to appoint you as the child’s guardian in his or her estate planning documents.

If I am the biological parent, can I prevent my partner from having access to my children when we divorce?

Not necessarily. If your partner did not adopt your children and if you did not enter into a parenting agreement during your relationship, your partner could still have standing to seek custodial rights to the children if he or she assumed the role of a parent while you were together. Courts will often look at what role the nonbiological parent played in the child’s life prior to your separation. For example, a court will examine whether the nonbiological parent was listed on school forms as a parent, named as guardian, consulted with on major decisions, and functioning as a caretaker of the children. If so, the court may find that he or she acted “in loco parentis” and therefore has standing to pursue custodial rights. You should consult an attorney specializing in same-sex custody matters in the state where you reside.

Will I have to pay child support for my ex-partner’s children if I am not the biological parent?

Possibly. If you adopted the child, you assumed all rights and responsibilities of a parent and that includes providing financial support. Some courts have also found that the nonbiological parent is responsible for paying child support if the parties made the decision to start a family together and held themselves out as a family. If you are seeking custody rights, you should also be prepared to pay child support.

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Michelle Piscopo

Blank Rome LLP

Philadelphia, PA