Introduction to Same-Sex Family Law
While we attempt to keep this guide updated, the legal landscape for same-sex
couples and their families continues to evolve rapidly. It is always best
to speak with a family law attorney who will be able to provide the most
current legal information as it relates to your specific circumstances.
What a Difference a Decade Makes
Over the past several years, we have witnessed an incredible change in
society’s acceptance of same-sex couples in the United States. On
June 26, 2003, the Supreme Court decided
Lawrence v. Texas, holding that states could not criminalize
gay sex. A decade later, the Supreme Court decided
Windsor on June 26, 2013 and held that the portion of the Defense of Marriage Act
(DOMA) that allowed the federal government to only recognize marriages
between a man and a woman was unconstitutional.
In Washington, same-sex domestic partnerships providing some of the rights
of married couples were first recognized in 2007. Same-sex marriage was
legalized by Washington State in 2012.
Although the federal government must now recognize same-sex marriages established
in states that legally recognize them, states can continue to define marriage
how they choose and pass laws governing the families of same-sex couples.
For this reason, it is important that even legally married same-sex couples
in Washington be aware of the changing legal landscape of same-sex relationships
throughout the country.
A Patchwork of Legal Recognition
Same-sex couples go through the same life experiences as opposite-sex couples:
they become parents, acquire property together, and occasionally break
up. Unlike opposite-sex couples, however, the law for same-sex couples
varies wildly based on what state they are residing in, or even traveling
through, at the time the life event occurs.
Even in states that recognize same-sex couples, the level of protection
varies. These differences in recognition of same-sex relationships can
also mean varying degrees of protection for the relationships of children
to their LGBT parents. The patchwork of legal recognition creates a complex
world for same-sex couples and their families.
Issues Affecting Same-Sex Families
Gay marriage. Marriage equality. Same-sex marriage. Opposite-sex marriage.
Civil unions. Domestic partnerships. Traditional marriage.
These are all terms used in the debate over the legal recognition of same-sex
relationships. Opponents of same-sex marriage often use the term “traditional
marriage,” as a hot-button word to try and restrict the expansion
of the definition of marriage to include same-sex couples.
Regardless of the label or level of state recognition, in the practice
of family law, we find that the issues affecting same-sex families are
Same-sex couples want the same things as opposite-sex couples. They want
to make sure their partners are able to visit them in the hospital, and
inherit their property if they die without a will. Same-sex couples have
children together and they want both parents to be recognized as a legal
parent. Sometimes, same-sex couples break-up, and they need to figure
out how to divide their property. When couples with children break up,
they have to figure out how to share the parenting responsibilities, which
typically requires creating parenting plans and child support orders.
Unfortunately, because some states still fail to recognize and protect
same-sex couples and families, an additional layer of complexity is added
to these traditional life events.
Marriage, state registered domestic partnerships, and civil unions convey
legal protections and responsibilities for same-sex couples to varying
degrees. Sometimes, domestic partnerships or civil unions only provide
certain rights and responsibilities depending on each individual state
and their legal recognition law. In addition, some cities or companies
recognize ”domestic partnerships” for the purpose of conveying
benefits, but this recognition does not convey any state recognized rights.
This guide will seek to explain the complexity of the family law issues
same-sex couples currently face in Washington State and the nation overall.