Same-Sex Couples

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A federal judge’s ruling in October 2014 struck down North Carolina’s ban on same-sex marriages and paved the way for same-sex couples in North Carolina to legally marry. Married and unmarried same-sex couples, however, still face many hurdles in achieving equal rights and protections. This is due, in part, to the lack of clarity and legal precedent in North Carolina’s laws.

CHILD CUSTODY AND VISITATION: Child-related legal issues involving gay and lesbian couples are at the forefront of many conflicts. Under current North Carolina law, unmarried parties are not allowed to jointly adopt a child. For same-sex couples who are unmarried, this prohibits a same-sex partner from legally adopting the other partner’s biological or adopted child. This also means that, if an unmarried couple makes a joint decision to adopt a child, they must also decide which one of them will be designated as the child’s legal parent – the parent legally responsible for the child’s care and support.

North Carolina courts have recognized there can be circumstances in which it is in the best interests of a child for custody or visitation to be awarded to a non-legal parent or guardian when the legal parent has acted inconsistently with his or her constitutionally protected rights to exclusive parental authority. There is no guarantee,however, that a same-sex parent who is not a legal parent of the child will be entitled to custody or visitation rights if the parties separate. Although each situation is unique, if same-sex partners elect to marry, it may be possible for the non-legal parent to proceed with a stepparent adoption. Additionally, a child custody and child support agreement may offer some legal protections to the non-legal parent in the event of a separation.

CHILD SUPPORT: Married same-sex couples who are joint legal parents of a child are presumed to be equally responsible for the support of a child. As such, if the parties separate, either parent may initiate an action to seek child support from the noncustodial or supporting parent.

North Carolina law is less clear about the obligation of a non-legal parent for support of the child of a same-sex couple, but the child support statutes likely would impose a support obligation on any same-sex parent who seeks custodial rights of a child.

SPOUSAL SUPPORT AND PROPERTY DIVISION FOR MARRIED COUPLES: Married same-sex couples are entitled to the same rights and obligations as married opposite-sex couples. In the event of marital separation, either party may pursue claims for postseparation support and/or alimony and equitable distribution of marital and divisible property and debts pursuant to North Carolina General Statute § 50-20 et seq.

SPOUSAL SUPPORT AND PROPERTY DIVISION FOR UNMARRIED COUPLES: Unmarried couples, including gay and lesbian couples, who are in domestic partnerships may find themselves unprepared for certain financial and legal realities in the event of separation. Courts are not authorized to award postseparation support or alimony in the event of separation of unmarried couples. An exception would be if the parties have a valid written agreement that contains provisions for spousal support and a party seeks to enforce that agreement.

Unmarried couples are not entitled to seek an equitable distribution of property and debts under North Carolina law. When unmarried couples separate, they may be surprised at the challenges they face to claim their share of equity in assets that were acquired during their cohabitation. In some situations, there are legal remedies available to those who have contributed income or funds toward the acquisition of assets which are held or titled in the name of the other party. Debt incurred in the joint names of an unmarried same-sex couple is another area of potential controversy that is likely to arise when the parties separate.

Certain legal documents, including wills, deeds, and contracts, can help avoid disputes and clarify expectations and rights of entitlement in the event of separation or divorce from a domestic partner.

The family law attorneys at Tharrington Smith provide legal representation to married and unmarried same-sex couples in all family law related matters, including, but not limited to the following:

  • negotiation and preparation of a domestic partnership agreement;
  • negotiation and preparation of a premarital agreement;
  • adoption, including stepparent adoption;
  • child custody and visitation issues arising from the marriage or same-sex relationship;
  • child support;
  • name change;
  • property rights arising from (unmarried) domestic partnership;
  • divorce;
  • spousal support (postseparation support and/or alimony); and
  • equitable distribution of marital and divisible property and debts.

The legal issues affecting same-sex couples are an evolving area of law and may involve complex legal challenges. These matters are generally best handled by competent attorneys who have the skills and resources these important issues command.

The attorneys at Tharrington Smith are dedicated to advocating and protecting the rights and interests of the clients they serve. Our lawyers offer the benefit of decades of collective learned knowledge and professional service that is balanced with an awareness of the uniqueness and special needs of each of our clients.