Articles Posted in Same Sex Marriage

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Child

When a marriage breaks down, the question of child custody becomes inevitable. This can often be the most emotionally charged and even contentious part of a divorce. At the Woodruff Family Law Group, our compassionate and hard-working North Carolina child custody attorneys will let you know your rights as well as your options during this difficult time.

In Heatzig v. Maclean, a biological parent of children conceived through artificial insemination disputed the rights of her former same-sex domestic partner. The couple lived together and took care of the children for three and a half years. The relationship ended and the defendant left the shared home and took the children with her. The plaintiff filed a lawsuit seeking joint and physical custody of the children.

The court assessed the following factors:  i) the plaintiff and the defendant made a joint decision to create a family unit; ii) the defendant deliberately identified the plaintiff as a parent; iii) the sperm donor was chosen based on certain physical characteristics similar to those of the plaintiff; iv) the plaintiff’s last name was used as one of the child’s last names; v) the plaintiff was present throughout the pregnancy and took part in the child’s birth; vi) both the plaintiff and the defendant were identified as parents at the child’s baptism; vii) the plaintiff was listed as a parent on the child’s school forms; and viii) the plaintiff had the authority to make medical decisions for the child. The Court noted the defendant had been trying to get pregnant for a while before she began her relationship with the plaintiff.

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By: Dana M. Horlick, Attorney, Woodruff Family Law Group

 

Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

(a) Two years ago, it appeared that the United States would be divided for some years between states that recognize same-sex marriage, and states that do not recognize same- sex marriage.

(b) After Windsor, most federal courts held that state provisions refusing to recognize same-sex marriages are unconstitutional. See, g., Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).

(c) This issue reached the S. Supreme Court in Obergefell. The Court held that as a matter of federal constitutional law, states are not permitted to allow only opposite-sex couples to marry. If a state recognizes opposite-sex marriages, it must also recognize same-sex marriages.

(d) The choice-of-law question has therefore fizzled into irrelevance. All states must permit same-sex couples to marry, and all same-sex couples who do marry are entitled to file a joint federal income tax return.

A less well settled topic is that of innocent spouse relief.

Deihl v. Comm’r, 603 F. App’x 527 (9th Cir. 2015) (unpublished)

(a) Facts: A wife sought innocent spouse relief from tax due on returns she filed jointly with her late husband. She claimed that she was entitled to relief because, among other things, she was abused during the marriage.

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1.  What is the date of marriage?  Prior to October 2014, same-sex couples could not marry in North Carolina. But what date of marriage will North Carolina recognize if the same-sex couple was earlier married or entered into a civil union in some other state before October 2014?   The date of marriage is obviously critical in equitable distribution as marital property is created from the date of marriage to the date of separation.  The North Carolina legislature has not dealt with this important date of marriage issue (civil union date) where the couple married (created a civil union) in another state prior to October 2014.

a. Arguably, the date of marriage is the date of the marriage license and ceremony in a state that recognized same-sex marriage on the actual date of the marriage.  North Carolina should recognize that original marriage date because the couple could return to the state of the marriage and get a divorce.

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In Greensboro, a same sex couple can go to the Register of Deeds in Guilford County and obtain a North Carolina Marriage License.  There are also Register of Deeds in the Piedmont Triad in Lexington, Asheboro, Graham, Wentworth, Roxboro, Yanceyville, and Winston Salem that provide the same product and service, a Marriage License.

Recently, and notably, Ireland has had a national referendum and said “yes” to same sex marriage.  Ireland has long been a stronghold and defender of the Catholic faith, which has been a citadel of opposition to gays, lesbians, and of course same sex marriage.

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