The recent tidal wave of changes to state and federal laws surrounding gay marriage bring with them unique challenges for same-sex couples when it comes to divorce, property division, child custody and visitation, and adoption.
Since the 2015 Supreme Court ruling in Obergefell v. Hodges, same-sex couples can now marry anytime, anywhere, and in any state without worrying that their marriage won’t be recognized elsewhere due to differing state laws. This means that the rights and laws dividing property, assets and debts, as well as custody, parenting time and child support for children, now affect same-sex couples in the same way as heterosexual couples.
Our legal team provides experienced and compassionate counsel and representation in matters such as:
- Establishment of cohabitation agreements for same-sex partners who wish to proactively address certain issues that could arise if the relationship breaks down
- Navigation of all steps required to prepare for and complete a second-parent adoption or adoption by a same-sex couple
- Review of estate planning documents in light of our same-sex clients’ concerns involving medical decision-making, succession, inheritance of assets and more
- Various forms of dispute resolution when couples decide to dissolve their relationships, involving those involving property division, child custody and visitation
Child custody and parenting issues
Same-sex divorce or custody disputes involving a couple’s minor children present thorny issues that do not arise in cases where the spouses are both biological parents. Unless there has been an adoption proceeding, complex legal issues arise in a custody dispute involving a non-biological parent. Rules pertaining to a presumption of legitimacy for a child born to a married couple may or may not apply to same-sex couples.
Our lawyers can help you address custody issues arising from a separation or divorce. We are also pleased to be able to help LGBT families navigate the legal system as they seek to expand their families through adoption, surrogacy, or assisted reproductive technologies.
Property division
Tennessee is an equitable distribution jurisdiction, meaning that courts will divide marital property based on what they believe to be fair and equitable to the parties and not necessarily on a 50/50 basis. In practice, however, courts will often start from an assumption that a 50/50 division is what is fair and equitable.
One challenge that same sex spouses commonly face when they have lived together as a committed couple for many years before they were able to legally marry is the timing of when the court should treat the union as having commenced for purposes of property division and alimony. Tennessee courts will generally not consider any period of time prior to the legal marriage when it determines what is “marital” property, or what property has been acquired since the date of marriage, and what is “separate” property, or what property each spouse owned before marriage or what property was acquired by gift or inheritance during the marriage. In Tennessee, typically the courts will only seek to divide marital property in the event of a divorce.
While the law regarding timing of evaluating property in a same-sex divorce is still developing, our lawyers follow the development of case law and statutory revisions closely to ensure that our clients receive the most current information when evaluating a case.
