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.
b. What about the civil union? Some states now have an opt-in provision turning the civil union into a marriage. So, will the date of the marriage be the date of the civil union or the date of the opt-in to marriage? North Carolina does not have an opt-in provision.
c. In Vermont, a civil union statute automatically turns the civil union into a marriage by a Vermont statute. In 2012, the Massachusetts Supreme Court declared that a Vermont civil union is equivalent to marriage. Elia-Warnken v. Elia, 463 Mass. 29 (2012).
d. Civil unions were created primarily as a workaround for marriage. People entered civil unions to obtain rights of marriage. Is civil union marriage, or is it something else? North Carolina never had a civil union statute, but what if a couple has a civil union in a state with an opt-in provision for marriage and they did not opt in. Will North Carolina consider them married if there was no opt-in to marriage? The member of the civil union that does not want a marriage will argue: I have no notice that I am married; I would have had a premarital agreement if I were getting married.
e. Should intent of the couple in entering the civil union be part of the decision in North Carolina on whether the civil union is recognized as a marriage? The intent analysis seems messy, and open-ended to me, as intents (reasons) vary widely and have many individual ramifications. Should there be a rebuttable presumption that persons to a civil union intended to be married?
f. Let’s say at the date of marriage in Canada, one of the partners to the same-sex partnership was married to someone else in North Carolina and were not divorced from spouse one. So is the marriage in Canada a marriage? Is it bigamy?
g. North Carolina will not likely recognize civil unions as marriage.
h. North Carolina has many issues to resolve either through the legislature or the courts regarding marriages and civil unions in other states or countries if the marriage or civil union occurred before October 2014.
2. Gay and lesbian couple create families generally through surrogates or adoption. North Carolina does not recognize the Uniform Parentage Act.
a. Joint Adoption. In North Carolina, a married gay or lesbian couple may jointly adopt a child.
b. Step-parent adoption. If one member of the gay or lesbian couple is a biological parent and the other marriage partner is not biological, a stepparent adoption may be possible. North Carolina General Statutes Section 48-2-301(c). Note that the couple must have been married at least six months for a step parent adoption. Then there is the question of whether you need a termination of parental rights if there was an anonymous sperm donor.
c. Surrogate. Both same-sex and opposite-sex couples have children with the use of a surrogate. North Carolina has a presumption that a child born during the marriage is the child of both parents. Logically, in a married gay or lesbian couple, one of the partners is not a biological parent, so should this presumption apply? For example, the married gay male couple may use a surrogate, so one is a biological parent and one is not.
The Department of Health and Human Services in North Carolina is currently unwilling to utilize this marital presumption to married gay men. So currently, in North Carolina the non-biological parent will need to get a declaration of parentage. Otherwise, you may need to get a termination of parental rights of the surrogate.