It is a beautiful fact that much of traditional family law now applies to same-sex couples. Since the 2015 U.S. Supreme Court landmark ruling in Obergefell v. Hodges invalidated much of the federal Defense of Marriage Act (DOMA), gay marriage is legal in Kansas. And while this solidified the legal status of same-sex spouses, the legacy of inequality leaves some open questions. At The Henry Firm, with offices in Overland Park, Kansas, we are fully familiar with the state of the law and adept at working out solutions for same-sex couples who decide to part ways.
Child custody and visitation is a major area of potential disagreement in a same-sex divorce. Only one spouse is the biological parent of the child, and the other spouse enjoys no presumption of parenthood such as is legally recognized in a heterosexual marriage. A nonbiological spouse’s parental rights must be formalized through what is known as a second-person adoption. This process allows one spouse to acquire parental status without compromising the other spouse’s rights as the biological parent. In the event of divorce, it puts both spouses on equal footing when it comes to resolving such issues as child support, custody, visitation, healthcare and the child’s education and religious affiliation.
Without an adoption, there still may be a possibility of the nonbiological spouse being granted limited parental rights in a divorce if this is determined to be in the child’s best interests. Usually, this is based on that parent showing a strong relationship, termination of which would be injurious to the child. Due to the vagaries of this uncharted area of law, an experienced attorney is a must for seeking parental rights in a same-sex divorce.
Domestic partnerships have never been recognized in Kansas as spousal relationships, which means dissolving them is fairly straightforward, similar to cancelling a contract. Other couples may have signed a formal cohabitation agreement describing the parties’ relationship to each other, duties of support, property ownership and other rights and obligations.
Either scenario may invoke legal issues to be worked out. Dissolution requires the consent of both parties and, if certain terms are contested, may need dispute resolution. Some couples may have jointly entered into contracts with third parties, such as a lease, or titled property, and now must divide that property. If there were children born of the couple, or adopted, child custody and support orders can be sought through the courts.
The Henry Firm has lawyers who are passionate about marriage and family law equality. We will take advantage of existing law and explore areas of uncertainty as we work to achieve the best possible result – and maybe break new legal ground along the way. To schedule a consultation with one of our attorneys, call 913-381-5020 or contact us online.