Hiring a same sex family attorney is a smart decision. The LGBT community has been rocked by changes over the last few years, in terms of legislative decisions and precedent-making court cases. Though the changes have been dramatic and positive, they have also resulted in much uncertainty and confusion surrounding LGBT issues.
Given this uncertainty, it’s critical that LGBT families in Asheville, North Carolina engage LGBT family lawyers who are knowledgeable and compassionate. It is important to have a LGBT family lawyer who is familiar with the changing legal landscape to advocate on your behalf and guide you through complex family law issues.
The summer of 2015 culminated in the landmark U.S. Supreme Court decision of Obergefell v. Hodges which declared state bans on same-sex marriage to be unconstitutional. All states must now permit same-sex couples to wed and must recognize same-sex marriages performed in other states.
While Obergefell represented a major milestone in the struggle for equal rights for same-sex couples, the recognition of same-sex marriages in North Carolina brings with it a number of related legal challenges for LGBT couples: marriage planning, divorce, child custody, adoption, alimony, and property division are but a few of the issues that many same-sex couples in Asheville and throughout the state will have to face.
An experienced and tenacious LGBT family lawyer can assist you in navigating this new legal terrain.
LGBT Reproductive Issues
LGBT couples face many challenges when attempting to grow their families. Assisted reproductive technologies, such as the use of sperm or egg donations, gestational carriers or surrogates, are an option that many gay and lesbian couples consider. It is critical given the complexities of such situations that your same sex family attorney help craft the necessary contractual documents to protect your rights and interests. A LGBT family lawyer will ensure that these types of service arrangements are legal, adequately documented and contracted for LGBT couples.
Despite North Carolina’s same-sex marriage ban being struck down, same-sex couples are still facing numerous challenges when trying to adopt through licensed adoption agencies or private adoption processes. Same sex family attorneys realize that although it would appear that North Carolina law now allows for same-sex couples to adopt children, same-sex couples in North Carolina may be facing discrimination when attempting to navigate the adoption process. In cases where a married same-sex couple already has and is raising a child together, but where only one parent had an established legal relationship with the child, the other parent may be eligible to adopt the child. Relying on a same sex family attorney who is compassionate and supportive can tremendously ease the frustration of this process.
Although North Carolina adoption agencies are not permitted to discriminate against same-sex couples looking to adopt a child, experienced LGBT family lawyers know that agencies may nevertheless attempt to make the process more difficult for same-sex couples. Without the help of a LGBT family lawyer, Same-sex couples attempting to add a child to their family through adoption may find the process confusing and frustrating – and some agencies may be unwilling to provide much assistance with the process of adopting a child. Adoption can also factor into a same-sex relationship if one of the parties already has a child from a previous relationship or marriage and that party’s spouse now wishes to adopt the child as his or her own.
Same sex family attorneys will explain how adopting your spouse’s child from a previous marriage can provide both you and the child with important legal rights and benefits. Although there is less of a chance that you will be the victim of discrimination when attempting to adopt your spouse’s child, our LGBT family lawyers are aware that some judges may still feel uncomfortable or hesitate about allowing you to adopt the child.
Overall, while adopting your spouse’s child involves fewer steps and a shorter wait time than adopting a child through some agencies, the procedure for doing so can be just as challenging which is why relying on a same sex family attorney is critical. Whether you and your spouse are looking to adopt a child from an agency or you are wanting to adopt your spouse’s child, having a dedicated and compassionate LGBT family lawyer to guide you through the adoption process can prove to be invaluable. Your same sex family attorney can soothe frayed nerves by explaining delays and hurdles that are normal and he or she can take aggressive action to combat unfair and unlawful discrimination in the adoption process.
A knowledgeable LGBT family lawyer knows that same-sex marriage has been an incredibly fast changing issue across the United States in the past several years, with cases appearing before judges at nearly every level. The first of two major cases impacting same-sex marriage was decided in June of 2013. That case, U.S. v. Windsor, resulted in the U.S. Supreme Court striking down the federal Defense of Marriage Act (DOMA), a piece of legislation that said marriage was defined strictly as unions between one man and one woman. A same sex family attorney will explain that this decision meant that the federal government was required to acknowledge the validity of same-sex marriages.
Exactly two years later, the U.S. Supreme Court then returned to the subject again, issuing an even more important decision in Obergefell v. Hodges. In Obergefell, the Court held that state laws banning gay marriage are unconstitutional as they serve no legitimate government interest and exist purely to deny couples a basic right: the right to marry. Most same sex family attorneys see that Obergefell requires all states across the country to recognize and allow same-sex marriages. Given these drastic changes, many same-sex couples are now eager to take advantage of their right to marry.
Hiring a same sex family attorney to help with financial counseling is a smart decision. Our LGBT family lawyers may provide legal representation to individuals who are considering marriage and would like to know how their marriage may affect their personal property and interests.
Given that same-sex couples now have the right to marry, it is crucial that they begin protecting themselves in the same way that many heterosexual couples do. Our same sex family attorneys recognize that one way of doing that is through the use of prenuptial agreements. Prenuptial agreements are legally enforceable contracts that help protect individuals who have assets that were acquired prior to the marriage. Such assets may include property, vehicle and money. These contracts can prevent such assets from being co-mingled with marital assets (assets acquired during the course of the marriage). With the help of a same sex family attorney, you can keep these previously acquired assets separate from marital assets through a prenuptial agreement that can protect the individual’s best interests in the event of a divorce.
The wedding day and honeymoon are supposed to be joyous occasions in the life of a couple, but poor planning before the wedding can bring about hardships and difficulties later on in the marriage. There are many financial decisions that a soon-to-be married couple should address: whether bank accounts should be merged or kept separate, changing the beneficiary listed on retirement accounts and life insurance accounts, and determining what to do with assets the two engaged spouses acquired before the marriage are all better addressed sooner rather than later. By visiting an LGBT family lawyer before the big day, a couple can learn how best to protect their assets and ensure their new spouse is looked after in the event of a sudden and tragic occurrence.
A knowledge same sex family attorney recognizes that protecting one’s assets may include creating and executing a prenuptial agreement. Since same-sex couples are now allowed to marry in North Carolina, prenuptial agreements can be used by LGBT individuals who are wanting to gain certainty and security for themselves in the event the marriage sours. Through a valid prenuptial agreement, an engaged couple can agree on how issues like division of property and alimony should be handled in the event of a divorce. A prenuptial agreement can be especially useful for a person who has a substantial amount of assets that he or she acquired before marriage or a spouse who has children from a previous marriage. In order to be valid and enforceable, a prenuptial agreement must comply with certain legal requirements that are designed to ensure both parties are aware of the terms of the agreement and have a sufficient understanding of each other’s finances. An experienced Asheville LGBT family lawyer can help you determine if a prenuptial agreement makes sense in your situation and, if so, help you create an enforceable prenuptial agreement to protect your interests.
Just as divorce occurs to heterosexual couples, divorce can and does occur among same-sex couples as well. The issues that heterosexual couples must face when divorcing are the same issues that a same-sex couple must face: determining if the divorce should be filed as a “fault-based” or “no-fault” divorce, dividing marital assets and property, dividing marital debt, working out a parenting plan, and setting child support and/or spousal support. Where a divorcing couple is in complete agreement about how each of these issues should be decided, a same sex family attorney’s assistance may not be necessary. But it is rare for divorcing spouses to agree on every matter.
When divorcing spouses do not agree on one or more issues, the court must become involved and determine the issue for the parties. The court will apply different legal standards and examine different facts depending on what issue it is being asked to decide:
- For questions regarding division of property, the court will first identify what assets and property is considered to be marital property. Once this has been determined, the court will then divide these marital assets in a manner that treats each spouse fairly (although this does not mean the assets will be divided 50/50). A professional LGBT family lawyer realizes that questions and conflicts can arise when one spouse’s separate property is classified as marital property, such as when an inheritance or personal injury award given to one spouse is commingled in the couple’s joint bank account and used to pay the couple’s expenses. (Debts acquired during the marriage are also divided “fairly” by the court.)
- For questions regarding alimony, there must be both a financial need for the support by one spouse and the ability to pay the requested alimony by the other spouse. An experienced same sex family attorney will show that alimony is no longer used to “punish” one spouse: instead, a court will consider a number of factors relating to each spouse’s financial situation, earning potential, and employment prospects in determining if an alimony award is appropriate. Alimony can be ordered paid in one lump sum or periodically over a certain period of time.
- For questions regarding parenting time/visitation, the court will again consider several factors and determine what it believes to be a visitation and custody arrangement that is in the “best interest” of the child. While the court will usually attempt to provide both parents with sufficient amounts of time throughout the year so that the child can form a healthy relationship with both parents, a seasoned same sex family attorney knows that the court is not required to award each parent near-equal time with the child if it believes doing so would not be in the child’s best interest.
Alimony and Child Support
Given that same-sex marriage, which unfortunately can lead to same-sex divorce, is a relatively new area of family law in North Carolina, there are very few case studies as to alimony awards for LGBT family lawyers to present in same-sex divorces. As courts weigh whether a dependent spouse is dependent of the income of their spouse, there is no reason to believe there was be any effect on the award of spousal maintenance. Logically, an alimony award should should be awarded in the same manner as it would be in same-sex divorces.
In same-sex divorces, child support should be the same as it is in opposite-sex cases. The determination of child support is done by taking into account both parents incomes and expenses and plugging into a formula. Child support is only owed by legal parents. In a case where a same-sex couple was raising a child together, but only one of the parents was a legal parent, the non-parent is not legally required to provide child support. Legal Counsel from a same sex family attorney or LGBT family lawyer should be sought at the time of marriage or when receiving a new child into the home.
Do you need a LGBT family lawyer?
A common question that many couples wonder about is whether they need to hire a same sex family attorney or if they should handle the divorce themselves. Divorce is an incredibly complicated legal matter and involves unwinding financial and familial ties between two people, a delicate process that must be done properly. Divorce can also be high stakes, with the costs and division of property impacting your life and the life of your former partner for years to come. Given this, it is important that you rely on the experience of a LGBT family lawyer who is well-versed in family law and equipped to handle such matters.
Even though the laws and principles surrounding family law issues are well-established, applying them to the situation and circumstances of LGBT couples is a new endeavor for many North Carolina courts. Without experienced and knowledgeable legal counsel from a same sex family attorney on your side, your legal rights and interests are at stake.
Do not gamble with such important things as your family, your children, and your future. Consult with an Asheville LGBT family lawyer before you and your partner tie the knot to ensure you start your marriage off on a solid footing. If trouble arises during the marriage, do not wait for a bad situation to get worse.
The early intervention of a dedicated same sex family attorney in a divorce proceeding or child custody battle can greatly improve the chances of a favorable outcome for you.
Grounds for divorce
A LGBT family lawyer can explain how North Carolina allows for divorce on either a fault or no-fault basis. It’s very rare for couples to pursue the fault-based option, which involves proving marital misconduct or other defects in the relationship. Our same sex family attorneys recognize that couples are instead far more likely to pursue a no-fault divorce option. To do this in North Carolina, you and your spouse must live separate and apart continuously for one year. Once this separation requirement is fulfilled, the marriage can then be dissolved at the request of the parties. Obtaining a divorce can be time-consuming and challenging. Retaining legal counsel from a LGBT family lawyer to protect your personal interests and to obtain a divorce in the most efficient manner possible is a wise choice.
Estate planning is another part of family law that has impacted LGBT Families and LGBT family lawyers. Thanks to Obergefull vs. Hodges legalizing same sex marriage nationwide, estate planning advice given to same-sex couples would also apply to same-sex couples.
The first and most important step is to draft a will and what you want covered in your will. A will gives you the ability to determine what happens to your property when you are gone and who inherits the property. Our LGBT family lawyers recognize that this is an important part of an estate plan for same-sex couples is who you want to serve as a guardian to your children.
Beneficiary designations must be kept in mind. Just like opposite-sex couples, adding a beneficiary to a life insurance policy and retirement accounts is important. In the event of death, you can rest easy with beneficiary designations in place knowing that you money will be passed on to your spouse. The rules have changed since DOMA was struck down, in that ERISA accounts not specifying beneficiaries will transfer to your spouse automatically, even if the person is of the same sex. Estate planning should include discussion of tax implications. LGBT family lawyers know that tax elements may have an effect on he type of planning you want to do.
Division of property
Our considerate LGBT family lawyers realize that same-sex couples in the midst of a divorce face the same worries and hassle that heterosexual couples encounter when it comes to the division of marital property. North Carolina is one of many states that embrace an equitable division approach to jointly held assets. An experienced same sex family attorney knows this means that the laws in North Carolina presume that marital assets and debts will be divided equally. However, this is a presumption and it can be overcome. The general goal is for there to be an equitable division of assets, something that may not necessarily imply an even 50/50 split.
Property division in same-sex marriages follows the same rules as property division in a heterosexual couples’ divorce. Both partners have the opportunity to reach a settlement arrangement out of court. If such an agreement is not met, the partners may leave the decision in the hands of the court. Hiring a same sex family attorney to protect your interests can have a critical impact on how quickly a settlement arrangement is reached, how beneficial the settlement is to your personal interests, or how the court is persuaded to rule on the matter if a settlement agreement is not met within a reasonable period of time.
One murky area of the law that LGBT couples must now navigate with an LGBT family lawyer is child custody. Unless an adult has been determined to have parental rights as to a child, that adult is not entitled to visitation time with the child or to ask the court for custody of the child. This can be traumatic for some LGBT individuals where you raise your partner’s child from a former marriage as if the child was your own. But unless you take steps with an LGBT family lawyer to acquire parental rights to the child, a divorce or separation can mean the end of your relationship with that child.
If you do have parental rights to the child, then the court will consider your request for custody and/or visitation time by determining what is in the child’s best interest. This may or may not coincide with the custody or visitation arrangement you would like. You will need a forceful and skilled same sex family attorney on your side to ensure the details about your care and concern for the child are made known to the court.