After Obergefell Part II: Same-Sex Divorce and Child Custody

Board Certified Family Law Specialist Matt Arnold answers the question: “Who pays for the children’s health insurance and co-pays?”


Note: This is Part II in a series examining the state of legal rights for same-sex married couples, a year after the U.S. Supreme Court recognized their constitutional right to marry. Part 1 can be found here.

Street Sign Charlotte Divorce Lawyer Mecklenburg Same Sex marriage AttorneyIn Part I of this series we talked about issues with birth and death certificates that remain a year after the U.S. Supreme Court decision in Obergefell recognizing gay marriage. Same-sex marriage might be the law of the land, but numerous legal hurdles remain for same-sex couples when it comes to building and protecting their families.

State laws and forms that assume married couples are heterosexual have presented numerous problems for same-sex couples seeking to be recognized on their children’s birth certificates, or to have each other listed on death certificates. This presents a whole host of problems for parental rights, as well as estate rights and survivorship rights for retirement and pension benefits.

Also inherent in the right to marry is the right to divorce. The timeline of same-sex marriage recognition has been so scattered and piecemeal that confusion and misinformation abound for many same-sex couples. This confusion can especially hurt divorcing same-sex spouses when it comes to issues of common law marriage and child custody.


Issues of common law marriage and divorce

By the time the Obergefell rolled around, many same-sex couples qualified for common-law marriage recognition, wherein a limited number of jurisdictions recognize a couple as legally married if they have been together for a requisite number of years without any civil registration or ceremony. Cases in Utah, Texas and Pennsylvania have since ruled that courts must recognize common law marriage that existed pre-Obergefell. Even states that do not recognize common law marriage for their own residents are supposed to recognize common law marriages from other states as legally valid.

Many couples were together long enough to have been common law married pre-Obergefell, after which they executed the legally-binding civil ceremony. This means that years before their marriage was given legal recognition, they were sharing income and assets. If those couples decide to now divorce, some courts will only consider the portion of the couple’s financials since the legal ceremony as marital property for the division of assets.

Other courts take a more equitable approach and consider joint assets the couple shared before legal marriage, but these decisions are coming down on an extremely case and judge-specific basis and many grey areas remain.


Child custody

When children are involved, things get even murkier. For example, some states that previously did not permit both parties in a same-sex couple to be named as a child’s legal parents now explicitly allow it, such as Florida. (Presumably all states should allow this post-Obergefell, but pushback from holdout state legislatures has slowed this recognition.) Some Florida couples mistakenly assumed their legal marriage post-Obergefell gave them the full parental rights they were before denied, so they never filed for full adoption. Upon divorce this can mean they are not recognized as having legal parental rights.

Compounding the issues of child custody and divorce are the nearly 200 anti-LGBT laws that have been introduced post-Obergefell. There is enormous conflict between the 17 states with anti-discrimination laws protecting the LGBT community from discrimination from businesses (such as private adoption agencies), institutions (such as housing organizations), and individuals—and the 32 states that instead advance so-called religious freedom laws, such as North Carolina’s very own HB-2. At issue is just how far a sincerely held religious belief can go when it impends on the civil rights of others, and the fight—now taken to the federal courts—shows no signs of slowing down.


The law is still developing in most of these areas, and the application is patchy. If you and your same-sex partner have a family law issue, it is important to speak with an experienced attorney versed in the local interpretations of these laws.


If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.


About the Author

ARNOLD & SMITH LAWMatthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.

Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.

A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.

In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.





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