Same-Sex Family Law

Alabama Same-Sex Marriage, Same-Sex Unions, Domestic Partnerships

Same-Sex Marriage is now recognized by all States and the District of Columbia after the landmark decision by the Supreme Court of the United States in Obergefell v. Hodges, on June 26, 2015. Beginning with Vermont in 2000, more and more states began to recognize and give legal significance to same-sex marriages. Before the Supreme Court ruling, more than 35 states had begun acknowledging a marriage, civil union, or domestic partnership that afforded certain rights and responsibilities to each spouse. Most of those states that recognized same-sex marriages from 2000-2015 were forced to do so by Court decisions. That means that lawsuits were filed to force the state governments to acknowledge and give legal standing to same-sex couples. (See www.lambdalegal.org)

"Alabama Marriage Protection Act" §30-1-19 Code of Ala. (1975) and an Amendment to the State Constitution were enacted in 2006. A majority of voters passed those laws which pronounced that marriage could only be between a man and a woman, and also that Alabama would not recognize any same-sex unions that may have been performed in other states, even if those states did recognize them.

The Supreme Court of the United States has now recognized that same-sex couples have the same right to marry that heterosexual couples have always had. Thus, the "Alabama Marriage Protection Act" and all other states’ laws banning same-sex marriages were unconstitutional according to the due process and equal protection clauses of the Fourteenth Amendment. The Court compared the bans on same-sex marriage to early prohibitions on interracial marriage. This ruling mandates that every state must permit same-sex couples to marry. Furthermore, each state must now recognize all same-sex marriages that were legally formed in any other state.

Does Alabama recognize Same-Sex marriages from other jurisdictions? Yes!

Legal Issues regarding Same-Sex Marriage in Alabama

  • Parenting: Who may adopt children? §26-10-5 Code of Alabama (1975) states that any unmarried adult, or husband and wife jointly may adopt. On its face that statute seems to prevent same-sex couples from adopting a child, but if they first marry under Alabama law, then there could still be a "step-parent adoption" filed by the same-sex spouse of the biological parent of the child.
  • Custody: Now that same sex marriages are recognized in Alabama, same-sex couples can both be legally recognized as parents and have joint custody, whether the children joined the family via adoption, artificial insemination, or surrogacy.
  • Visitation: There are currently cases pending on appeal in Alabama where a same-sex stepparent had to sue to maintain visitation with the child(ren) they were helping raise after the breakup with the same-sex parent.
  • "Full Faith and Credit" clause of the United States Constitution would seem to require that Alabama give legal effect to all same-sex marriages performed in other States. That clause in the federal law ensures that a heterosexual couple whom got married in Vermont is considered legally married when they move to Alabama. The same principles should apply here, but will certainly take much effort in the courts of this State to enforce.
  • Hospital and Medical Decisions will now be approached differently. Before February of 2015, most hospitals were free to disregard the wishes of a same-sex partner for medical treatment of their loved one. Same-sex partners simply were not treated as "family" in times of medical crisis or emergency, so they often had no influence over medical care and were provided no information from medical providers.
  • Other Legal Issues: Such as Employer Benefits, Health and Life Insurance, Pensions, Survivor’s Benefits, Inheritances, co-ownership of property will all be fundamentally affected by the recognition of same-sex marriage.

SAME-SEX DIVORCE

With the recognition of same-sex marriage in Alabama necessarily includes the ability to divorce a same-sex spouse. Alabama is a "no-fault" State, meaning that spouses can obtain a divorce based on irreconcilability, or incompatibility, just as with heterosexual couples.

However, a same-sex divorce can present a much more complicated situation. A skilled attorney in a same-sex divorce can make a tremendous difference in how the marital estate of a same-sex divorce gets subjected to "equitable division" of assets and liabilities.

For example, your attorney will need to establish for the divorce judge precisely when the marriage began, to ascertain when the marital assets started to accrue—Was it:

When the couple intended to marry and held themselves out to the public as being married; or if the couple previously resided in some other state that recognized same-sex marriage at the time,

When the couple got married in another jurisdiction; or only from the date of the same-sex marriage taking place on or after February 9, 2015 in Alabama; or

When the Supreme Court of the United States issued its ruling on June 26, 2015?

The same questions arise regarding the distribution of marital debts. You should consult an attorney to ascertain what debts are fairly attributable to each spouse individually during the marriage, and what debts should be shared by the divorcing couple.

The Equitable Powers held by the Judge in a divorce case afford tremendous latitude in how the assets, debts and property will be given to each same-sex when divorcing.

© Jason Bonar, 2015

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