Somewhere Over the Rainbow: Post-Marriage Equality in North Carolina Family Law

On June 26, 2015, the United States Supreme Court decided Obergefell v Hodges, making same-sex marriage legal in all 50 states. With legal recognition, however, comes the complicated legal issues that may accompany a separation and divorce in North Carolina. The same issues that many heterosexual couples experience (e.g., divorce, custody, child support, spousal support, and property distribution) may now factor into a same-sex separation. However, the legal implications in NC for LGBTQ citizens may not be as straight forward as it seems.

ADOPTION

Previously in NC, same-sex couples were prohibited from adopting children even if they were legally married in another state. When the law changed recognizing same-sex marriage, those couples became eligible to adopt children together as spouses. Additionally, where only one parent was the legal or adoptive parent, step-parent adoptions are now available to formalize the parent-child relationship for the other spouse.

CHILD CUSTODY

Although the Supreme Court’s ruling would suggest that a same-sex couple’s status shouldn’t be considered as a basis for a custodial award, in cases where only one parent is recognized as the legal parent, the implications for the other same-sex spouse may prove to be detrimental.  It’s not yet known whether lawyers will find ways to suggest that the same-sex status would constitute a “substantial change of circumstances” warranting the modification of a custody order.

EQUITABLE DISTRIBUTION

Prior to the Obergefell ruling, divorcing same-sex couples in NC were left to the whims of “title” in determining who got what property. For example, if the car that Linda drove was titled in Susan’s name, the car would go to Susan irrespective of whether the couple was together when the car was purchased and regardless of whether Linda used her own money to pay for the car. Now, with the recognition of same-sex marriage, that same car would be considered marital property pursuant to NC equitable distribution laws. In addition, same-sex spouses may now own property titled to them as tenancy by the entireties, which affords protection from the creditors of each individual spouse, precluding them from forcing a sale of the property to pay a debt.

NC is gradually changing the laws as they affect LGBTQ families. The family law attorneys of Weaver, Bennett & Bland, P.A. are committed to staying connected with the changing legal landscape and remaining vigilant in spotting subtle prejudices to ensure that all families are entitled to full rights under the law.

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Trusted since 1982, Weaver, Bennett & Bland, P.A. serves clients in North Carolina and South Carolina. Located in the town of Matthews between Mecklenburg and Union Counties in North Carolina, we’ve proudly provided legal services throughout Charlotte, Matthews, Mint Hill, Stallings, Indian Trail, Monroe, Marvin, Wesley Chapel, Weddington, Waxhaw, the Ballantyne area, and other surrounding communities in the Greater Charlotte region.  Our clients range from national corporations and major banking institutions to individuals and local companies.  We provide the best possible legal representation and advocacy, upholding our main client-focused cornerstones:  Helping. Planning. Protecting.