LGBT Lawyer in Winston Salem
Over the past few years much has changed in North Carolina in terms of same-sex couples and LGBT legal rights. Legislative rulings and precedent setting court cases have dramatically changed the dynamics of what was once considered the “traditional” family. While these changes have been long in coming and are definitely welcome in the LGBT community, they have also opened the door for uncertainly, and oft times confusion and frustration, in both same-sex and LGBT legal issues.
The landmark United States Supreme Court decision of Obergefell v. Hodges was handed down on June 26th, 2015, declaring state bans on same-sex marriage to be unconstitutional. It decreed all 50 states must allow same-sex couples the same freedom as heterosexuals to marry. Furthermore, each state must acknowledge and support all same-sex marriages legally performed in other jurisdictions. This major milestone surrounding equal rights for LGBT couples, while very welcome, has now created the same numerous legal challenges, many of which heterosexual couples have experienced for decades.
Concerns surround mainly the practice of family law and include: prenuptial agreements, marriage, divorce, estate planning, non-traditional reproductive decisions, adoption, property division, alimony and child custody and support. Because many of these areas are uncharted territory, it is vital those seeking legal guidance connect with a knowledgeable LGBT family attorney who has educated themselves on these new and often complex family law rulings. This rocky legal terrain can confidently be navigated by a dedicated and determined LGBT family attorney.
When we wed, we all, straight, gay, lesbian, bi-sexual or transgender want our marriage to be perfect. Many couples, both straight and LGBT, spend so much time, money and effort on the actual proposal, wedding and honeymoon, but never stop to consider making plans that could possibly prevent difficulties in the future. No matter what your sexual orientation or that of your partner, no marriage is completely problem free. And while many couples are able to overcome their differences, there are those whose marriages don’t survive.
No different than a man and woman choosing to merge their lives, while at the same time protecting assets each have brought into the relationship, so is the same for a same-sex engaged couple. Gender should have no role in a prenuptial agreement. A legally enforceable contract, drawn specifically to protect each individual’s assets acquired before marriage, can lessen discord if the marriage fails.
Prenuptial agreements are also used to determine which assets were obtained before the marriage and can quickly clear up any misconception of assets purchased jointly during the union. Property including homes, automobiles, boats, stocks, bonds, and currency are generally covered in a prenup, though they may encompass a wide and varied range of concerns depending on the individuals involved. If your personal and professional financial life dictate the necessity of a prenuptial agreement, an experienced family attorney who now specializes in same-sex law can easily draft a legally binding document protecting your interests both during and after the marriage.
Without a prenup in place a dissolution of marriage is often fraught with problems all centering around money. Many of these can be avoided both with a prenuptial agreement in place as well as several honest and forthright conversations about joint financial decisions. Should bank accounts be merged? Will the beneficiary change on insurance policies and retirement investments? Who will be the beneficiary on any assets under the prenup umbrella? These are all decisions that should be made before walking down the aisle. Making an appointment with a LGBT friendly family attorney before saying “I do” is one simple way of ensuring assets are protected and each spousal partner is secure in the event of an unforeseen tragedy.
A valid prenuptial agreement does more than simply safeguard the assets of only one party. This document can be drafted to include division of marital assets in case of a divorce, can give financial security to the other partner in the form of alimony or a lump sum and can address inheritance wishes for children from a previous relationship. A valid prenup, no matter what it addresses, must meet certain legal requirements. This is to ensure everyone involved completely comprehends the terms of the agreement along with having sufficient knowledge and understanding of each partner’s personal finances. Meeting with an experienced LGBT family attorney is the most prudent way to determine if a prenuptial agreement is necessary and if so, to have an enforceable document drafted that not only protects your interests but also provides security for your partner.
The legality of same-sex marriage was a long and arduous battle fought for many years all across our great nation. In June, 2013 the United States Supreme Court ruled in the United States v. Windsor. This landmark case struck down the federal Defense of Marriage Act (DOMA), legislation defining marriage as a union between one man and one woman. The federal government was now required to recognize the validity and legality of same-sex marriages. Fast forward to June, 2015 and the United States Supreme Court once again revisited the same subject in the above mentioned, Obergefell v. Hodges case. In this case, the Supreme Court ruled state law banning same-sex marriages served no legitimate governmental interest and these laws which denied LGBT couples the basic right to wed were unconstitutional.
After the ruling same-sex couples began marrying in record numbers. Unfortunately, as is true in heterosexual marriages, many times these relationships don’t survive. When this occurs the last thing a person wants to deal with is an attorney who doesn’t have their client’s best interests at heart simply because of their personal prejudices. Whether you intend to wed and need information on how to protect your assets, are interested in learning more about same-sex marriage requirements in the state of North Carolina or are in need of a caring and compassion LGBT family attorney in order to dissolve a union, we are here to help.
Divorce and Division of Property
Dissolution of a marriage doesn’t discriminate. And when a couple decides to end their marriage, the concerns are the same whether the partners are gay or straight. One or both partners will have to consult an attorney and begin proceedings. The first step is to determine what grounds will be used for the divorce. In North Carolina there are two types of divorces: absolute divorce and divorce from bed and board. An absolute divorce decrees the marriage is over after a year’s separation, while a divorce from bed and board is basically a fault-based legal action, beginning as a court ordered legal separation. Often this occurs when one spouse refuses to leave the marital home, will not agree to a separation agreement and/or to facilitate alimony, child custody and support rulings and equitable property distribution.
If your marriage is beyond repair and there is no prenuptial agreement in place, hopefully you and your estranged spouse can amicably divide both marital assets and property as well as marital debt. Then if there are children involved, it is vitally important for their security and well-being to work out a parenting plan, agreeing to child support and visitation. When a divorcing couple is in complete agreement on these major issues, the need for a same-sex family attorney diminishes, though one will still be required to file the necessary paperwork.
Regrettably, it is rare when divorcing spouses agree, and North Carolina is one of many states which require estranged spouses to attend court appointed mediation to try to reach a settlement. If this doesn’t occur then a judge will decide on certain aspects of the divorce including child custody and equitable distribution.
In the case of equitable distribution, if an agreement cannot be reached, the courts will demand a complete listing of all joint marital assets and debts. North Carolina is a equitable distribution state in terms of jointly held assets. The judge will then divide both assets and debts so each spouse is treated fairly, though this doesn’t guarantee the split will be 50/50. Hiring a same-sex family lawyer to protect your interests may be beneficial in reaching a swift and satisfactory settlement arrangement. Or when a settlement isn’t possible having a skilled LGBT litigator in your corner is a plus.
The legalization of same-sex marriage now provides LGBT families with the same long-term financial planning opportunities heterosexual couples have enjoyed for decades. The first step is to draft a legal final will and testament. LGBT family attorneys understand for many couples this is a tremendous step; being able to legally plan for the financial future of your spouse and children in the event of your death; and one not to be taken lightly. When minor children are involved, a final will and testament needs to also include who will be appointed as the children’s guardian in case of both parent’s dying.
Beneficiary designations are important and should be checked periodically, especially after a major life event such as divorce, remarriage or birth or death of a child or spouse. This will ensure the person you want to inherit your money is correctly listed. Also, since DOMA was struck down, Employee Retirement Income Security Act (ERISA) accounts that do not have a designated beneficiary will automatically transfer all benefits to the spouse, no matter what gender.
While meeting with your LGBT attorney for estate planning purposes, tax implications concerning marital status must be discussed. Experienced family estate lawyers realize the fluidity of our constantly changing tax laws and the impact these laws could have on your estate.
LGBT couples face many challenges when attempting to grow their families. Options many same-sex couples consider to fulfill this include: sperm or egg donations, surrogates, artificial insemination and gestational carriers. Given the complexities of these different scenarios it is imperative a qualified same-sex family attorney be involved. Complicated contractual documents must be drawn up in order to protect not only your rights and interests, but the rights and interests of other involved individuals as well as those of the unborn child or children.
It is unfortunate that while now same-sex marriage is legal in North Carolina, loving committed couples are still faced with numerous challenges when beginning the adoption process both through licensed agencies and private adoptions. Many find themselves facing discrimination and prejudice and will require the services of an experienced same-sex family or adoption attorney. Although North Carolina adoption agencies are not permitted to discriminate against same-sex couples, that does not mean they make the process any easier. Retaining the services of a caring and compassionate LGBT family attorney can go a long way in easing the pain and frustration of the process. Same-sex couples wishing to add a child to their family may find certain agencies unwilling to assist in the process, deliberately stall the adoption or use other devious tactics in order to prolong the process, with the ultimate goal being the same-sex couple finally drop their quest.
In the past when same-sex couples have had a child together, the law has allowed for only one person to be the legal parent. Now when partners, who are raising the child together have married, and the other partner wishes to adopt the child so they too may be recognized as the child’s legal parent, the services of an experienced attorney will be required.
Adoption is also a possibly when one of the parties has a child from a previous relationship which is now being raised by both partners and the non-custodial partner wishes to adopt the child. A qualified same-sex family lawyer can quickly and easily explain not only the entire process, but all pros and cons associated with this life-changing decision. For example, adopting your same-sex spouse’s child from a previous marriage or relationship can provide everyone involved with important legal rights and benefits. A word of warning: even though laws have changed you still may be subject to discrimination. Some judges are still reluctant to approve such an adoption. That’s why it’s so important to have a knowledgeable, seasoned LGBT family attorney by your side, fighting for your legal rights.
Generally speaking, adopting a spouse’s child isn’t as involved as when attempting to adopt a child through an agency, but it can still be challenging and often exasperating. A dedicated and compassionate LGBT lawyer will guide you through the process, sooth frayed nerves, explain delays and help jump hurdles that while aggravating may just be a normal part of the procedure. They can also step in and take aggressive action to combat unfair and unlawful discrimination during the adoption process.
Due to the fact same-sex marriage only recently became legal in the state of North Carolina, at this time there are very few case studies on alimony for LGBT attorneys to present in same-sex divorces, though logic would dictate any alimony awarded should follow the same legal requirements as those in place for heterosexual marriages; which are as follows: alimony will be granted only if there is a financial need by one spouse and the other spouse has the ability to pay. Numerous factors including earning potential, employment prospects and each spouse’s financial situation is visited before alimony is granted. Depending on need, alimony may be awarded as a monthly or yearly payment or as a one-time lump sum amount.
Child Custody and Support
While a same-sex couple may now legally married unless a formal adoption has occurred, it is very possible only one party has legal parental rights to a child born before DOMA was declared unconstitutional. Without parental rights there is no legal entitlement to visitation nor will you be required to pay child support. This can be extremely traumatic for everyone involved and highlights the importance of consulting with a LGBT family lawyer when planning a marriage or involved in a long-term relationship where children are present.
When both parties have legal right to the child, the courts will attempt to determine child support and custody much in the same way as if the child were being raised by opposite-sex parents; ruling in what is in the best interest of the child. While every attempt will be made to provide both parents with access to the child, the final decision should rest in what is best for the child in both custody and visitation. Because child custody cases can often be fraught with emotion, it is definitely necessary to have a skilled same-sex family attorney at your side, fighting for your legal rights.
Child support problems frequently arise if the child was conceived and born before DOMA was struck down and only one party is the actual legal parent. Before same-sex marriages became legal when a child was born of a LGBT couple, legally only one of the parties could be listed on the birth certificate as the mother. If the couple then later married but the other party did not legally adopt the child and the couple then decided to divorce, the non-legal parent is not required to pay child support. That is why it is crucial when children are involved that a same-sex lawyer be consulted.
Is retaining a LGBT Family Attorney necessary?
General North Carolina family law rulings are well-established and can be found by doing a simple internet search. But these laws and principles, and how they apply to LGBT couples, are uncharted territory. Without an experienced and knowledgeable same-sex family attorney you can quickly and easily jeopardize your entire case, putting your and your family’s legal rights and interests at stake. Don’t risk your future, contact LGBT Family Law today for sound legal counsel. A dedicated same-sex family lawyer can bring you priceless piece of mind.