Family Law Issues for LGBT Couples in Pennsylvania

The U.S. Supreme Court recently ruled on two cases involving gay marriage.  The first case struck down a federal law, DOMA (Defense Against Marriage Act) which did not recognize legally married gay couples.  This law prevented gay couples from utilizing a variety of federal benefits which were available to heterosexual couples.  The second case struck down Proposition Eight, which was a law in California banning gay marriage.  However, the Court decided that case on the narrow issue on whether non-governmental officials, the citizen proponents of the Prop. 8, had standing to defend the law in court.  You can read more about these cases here: Supreme Court Ruling on Gay Marriage.

What does the recent Supreme Court decision mean for same-sex couples in Pennsylvania?

Unfortunately, the rulings do not change much for couples in Pennsylvania who often face complex family law issues due to the fact that same-sex marriages are not recognized here.  Couples will benefit from the DOMA ruling, in that as long as they were legally married (in a state recognizing same-sex marriage), they can take part in federal benefits traditionally afforded to opposite-sex couples.  However, the Supreme Court fell short of overturning all laws that ban same-sex marriage.  Thus, Pennsylvania and thirty-six other states may continue to ban gay marriage.  Pennsylvania gay and lesbian couples continue to face complex legal questions, especially in terms of issues that affect their families.  The best way for same-sex couples to address family law issues is to talk with an experienced attorney who understands the complexity of the law as it applies to same-sex marriages not legally recognized in our state.

Who will get custody of the children born to or raised by a same-sex couple after a divorce or separation?

For gay and lesbian couples, child custody issues in Pennsylvania can be especially complex, compounded by issues of biological relation, adoption and surrogacy.  However, Pennsylvania recognizes something called in loco parentis, which simply means that the individual stands in the position of a parent.  The law states that if a third party stands in the position of a parent, he/she may sue for custody of that child.  It is a question of fact whether someone stands in loco parentis, but this doctrine will generally apply to anyone who can demonstrate that he/she assumed the role of a parent, even if not biologically-related.  While this rule was not initially enacted to aid same-sex couples, it has successfully been used in court to provide same-sex spouses or partners with standing to bring a custody action.

Can same-sex couples receive child support?

Yes. Parents of a child owe an obligation of support to that child, regardless of whether the parent is gay, lesbian, or straight.  However, unlike a case involving two biological parents, with a same-sex couple it must first be established that the non-biological partner stood in loco parentis, before an obligation of support can be imposed.

How are divorces for same-sex couples handled in Pennsylvania?

Unfortunately, because Pennsylvania does not recognize same-sex marriages, there are no provisions in the divorce code to assist same-sex couples when they separate.  Because of this, gay and lesbian couples must look to contract and property law when determining how marital property will be divided. And, unlike a heterosexual couple, same-sex couples will be unable to benefit from things like spousal support, alimony or alimony pendent lite.  This can be especially stressful for a partner who spent the better part of a marriage as a home maker and will now be left without support.  For now, the best way to protect yourself from these issues is to enter into written agreement prior to any issues arising, much like a prenuptial agreement.

What is a domestic-partnership/cohabitation agreement and why are they necessary?

As stated above, same-sex couples in Pennsylvania are not afforded the same protections as heterosexual couples are when it comes to the dissolution of marriage. A domestic partnership or cohabitation agreement is a legal document which establishes each partner’s legal rights and responsibilities. Such an agreement can lay out what will happen to any property or debt if the relationship dissolves.

Why do same-sex couples need wills?

Whether a will exists or not, a heterosexual spouse will enjoy certain legal protections and entitlements to his/her spouse’s estate.  This is not true for a same-sex couple.  Therefore, a will is necessary for a same-sex spouse to inherit from his/her spouse.

What other family law issues affect the LGBT community in Pennsylvania?

Same-sex couples run into a lot of issues when they are looking to start a family of their own.  Many couples chose to use the egg or sperm of one partner and obtain a donor egg or sperm when deciding to have children.  Additionally, the couple may opt to use a surrogate. Many couples will utilize friends or family as donors or surrogates on the good faith belief that everyone will honor their informal agreements.  However, complex legal issues arise when a donor or surrogate attempts to enforce their rights over a child. Even if there are no issues with a surrogate or donor, legal issues can develop during custody actions when one parent is biologically related to the child and the other parent never legally adopted the child. Before these issues arise, you can be proactive by talking with an attorney about a surrogacy or donor contract, adoptions and second-parent adoptions.

Do LGBT couples need a family law attorney to deal with issues in Pennsylvania involving custody, support, divorce, adoptions, surrogacy, and wills/estates?

Bottom line is that the state of Pennsylvania does not recognize same-sex marriages.  Because of this, same-sex couples will face many more complex legal issues than the average heterosexual couple. Knowing the law is an important step to take in protecting yourself, your spouse and your children before a problem arises. For this reason, it is best to talk with a Pennsylvania family law attorney who has experience and understands the unique issues a LGBT family will face.