The State of Washington legalized same-sex marriage in 2012. The federal government followed suit shortly thereafter in 2013. These were landmark changes and giant steps forward in the struggle for equal rights and protection for same-sex couples. One might think that the playing field is now level and that same-sex couples enjoy the exact same treatment under the law as heterosexual couples.
To a large degree, that is correct. However, there are still some tricky areas where same-sex couples may run into issues. So we’ve compiled a list of common family legal issues for same-sex couples that continue to this day.
Co-Parenting Rights for Non-Biological Children
One critical issue that same-sex couples face is how to start a family. First, let’s discuss what happens when one spouse is the biological parent of a child and the other is not. This is a murky area of law. It is also something happy couples tend to ignore as they excitedly anticipate the birth of their first child. But it is extremely beneficial to thoroughly discuss how to handle legal parental rights once the baby is born.
Some people mistakenly believe that parental names on the child’s birth certificate are enough to establish all parental rights. Unfortunately, this is not always the case. The law always grants biological parents full parental rights to a child (absent severe extenuating circumstances). But non-biological co-parents should go through a formal adoption process if they want to protect their parental rights. To illustrate why you would go to all this trouble, let’s use some examples.
Say that Sarah and Sue got married and decided that Sarah would be the biological mother of their first child, Amy. Sarah gives birth and makes sure that Sue’s name is on the birth certificate, believing this is enough to ensure full parental protection for both of them. Both women are proud parents who work together to raise their beautiful daughter, who is now six years old. The family goes on vacation to a state that does not automatically grant parental rights to non-biological parents. While there, an auto crash seriously injures Sarah and Amy, and Sue tries to see her daughter. The hospital staff states that only family members can see the child. Sue insists she is one of Amy’s mothers, but this state does not recognize her as such. With Sarah unconscious, Sue is left stranded and unable to see or comfort her daughter. This is one example of why having a court declare you the legal parent of your child comes in handy. All states must honor a legal adoption.
Divorce and Death
Another reason to legally adopt your child if you are not the biological parent in a same-sex marriage is to protect your relationship with your child in the event of divorce or death. If either of these events happens, you may have a hefty legal battle on your hands to maintain parental rights. In a divorce, the biological parent may get preferential treatment by the judge. If the biological parent dies, there may be extended family members fighting you for guardianship. Save yourself time, money, and heartache by legally adopting your child. In the face of legal adoption, no court can deny your parental rights.
Adoption of Children
An area where same-sex couples still do not enjoy equal treatment is the ability to adopt children. Adoption agencies historically allowed heterosexual couples to adopt children. But same-sex couples have had to fight for the right to adopt children, and even now, some agencies refuse such adoptions. Agencies claim religious beliefs as the reason they deny access to adoption for same-sex couples. Biological mothers can also disallow the adoption of their baby by a same-sex couple. The bottom line is that same-sex couples still face hurdles in adopting children and have fewer choices than their heterosexual counterparts.
Estate Planning and Power of Attorney
Even though married couples theoretically have all the same rights and privileges, the fact is that same-sex couples may still run into roadblocks in certain areas. For instance, if you want to make certain that you can make healthcare decisions for one another if one of you becomes incapacitated—be sure to have power of attorney in place. Despite recent advancements, you never know when a healthcare provider may seek to deny you this right. But if you establish power of attorney, you will stop them dead in their tracks.
The same goes for estate planning. You should be afforded all the considerations of a spouse in the event of your partner’s death. But having a solid estate plan in place ensures that no stone is left unturned. It is extra protection in an era where many may seek to discredit your union.
Property Division in Divorce
Property division upon divorce is a particular source of concern for some. Washington legalized same-sex marriage in 2012, and if your relationship began after that, you shouldn’t experience any issues. But if your relationship began before 2012, complications can exist.
For instance, maybe you were in a domestic partnership or living together before being able to marry. If you accumulated assets or wealth during the years prior to 2012 and your legal marriage, you might stand to lose some of that property if you divorce. This is because property division in divorce relies heavily on the date of the marriage.
For example, suppose that Mark and Jack have been in a committed relationship since 2002. They started living together in 2004 and have been together ever since. During those years, they got credit cards together, joint bank accounts, bought a house, bought furniture, and even started a business together. They formed a domestic partnership in 2007 but were not married until they converted their partnership into a marriage in 2014. Now they are divorcing. How will a judge view the assets they accumulated between 2007 and 2014? Are they marital assets?
You need a family legal matters lawyer experienced in handling family legal issues for same-sex couples to sort through this legal complexity.
Our Lawyers Can Help
The lawyers at Blado Kiger Bolan, P.S., have decades of experience in Washington family law matters. We are well-versed in Washington law as it relates to LGBTQ+ rights, and we are honored to protect those rights in court. So call us directly or contact us online today for an initial consultation.