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Same-Sex Marriage, Divorce and Family Law

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Same-sex Marriage Laws in Arizona

Same-sex marriage first became legal in Arizona in 2014 after the state’s decision not to file an appeal of a federal court’s ruling that the state’s constitutional amendment that barred same-sex marriage was unconstitutional. In 2015, the Supreme Court of the United States followed with its decision in Obergefell v. Hodges, 132 S. Ct. 2071 (2015), which made same-sex marriage legal in all 50 states.

Couples in Arizona can choose to enter domestic partnerships or get married in Arizona. The laws concerning same-sex marriage covers divorce, marriage, child custody, property division, and adoption, and continue to evolve. If you face issues covered by the state’s same-sex marriage laws, you should talk to the family law attorneys at Colburn Hintze Maletta for advice.

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Same-sex Marriage Law in Arizona

Right to Marry in Arizona

In Connolly v. Jeanes, 73 F.Supp. 3d. 1094 (201) and Majors v. Horne, 14 F.Supp. 3d 1313 (2014), a federal court declared that Arizona’s prohibitions against same-sex marriage were unconstitutional. The state subsequently decided not to appeal the decision, resulting in the legalization of same-sex marriage in Arizona.

In 2015, the Obergefell decision legalized same-sex marriage in all 50 states.

Couples in Phoenix or Tucson can also choose to register domestic partnerships, including heterosexual and same-sex couples. To register a domestic partnership in Phoenix, couples must live together in Phoenix, be at least 18 or older, be competent, not be related by a degree prohibited in Arizona, be in a committed relationship, and not be in a civil union, domestic partnership, or marriage with someone else.

In Tucson, couples can register a civil union if they are 18 or older, not related to a degree prohibited in Arizona, are competent, living together in a supportive relationship, and are not already married, in a domestic partnership, or in a civil union with someone else.

Same-sex couples in Arizona are also now covered by the “Family and Medical Leave Act” for FMLA leave to care for each other’s serious medical conditions. Spouses can also get health care coverage and other benefits through their spouses’ employer-provided benefits. If you are in a same-sex marriage, you might need to change your beneficiary from other to spouse on your life insurance and your 401(k).

Arizona Same-Sex Divorce Laws

When a same-sex couple’s marriage comes to an end, the divorce process is essentially the same.However, a divorcing same-sex couplemight have to contend with issues that other couples do not encounter as frequently. For instance, many same-sex couples lived together for years before same-sex marriage was legalized, and therefore might have accumulated significant wealth prior to the official.

Because the laws in Arizona treat the assets brought into a marriage by an individual sole and separate property, this can increase the complexity of the litigation significantly, especially when sole and separate assets are mixed during the marriage with community or joint assets.

To avoid this issue, it may be a good idea for a same-sex couple to create a prenuptial or antenuptial (a.k.a post-nuptial) agreement spelling out how their assets will be divided and whether spousal maintenance might be ordered. Spousal maintenance might also be an issue when couples have lived together for years before getting married.

The laws regarding spousal maintenance only consider the years of marriage instead of the entire time a couple may have resided together. Addressing this issue in a prenuptial or antenuptial agreement or during divorce negotiations might help facilitate a fair outcome.

If you were married in a different state, you can still get divorced in Arizona so long as you or your spouse has lived here for at least ninety days. It is a good idea to speak to an experienced divorce attorney who is current with the laws as applied to same-sex couples. The attorneys at Colburn Hintze Maletta have experience handling LGBTQIA+ issues in divorce and family law and can help you to understand your options and rights.

In most divorces, reaching a full settlement agreement through negotiations is the best way to secure a better outcome. If you cannot reach an agreement, a judge will ultimately decide for you. Reaching an agreement is also much faster and less expensive than fighting a protracted legal battle in court.

However, reaching an agreement might not always be possible. If you cannot reach an agreement in your divorce, an attorney at Colburn Hintze Maletta can litigate the outstanding issues on your behalf at a divorce trial.

Same-Sex Parenting Time and Child Custody Rights in Arizona

When unmarried heterosexual couples have children, the unmarried father can establish paternity to secure his rights as a parent. After paternity is established, the father can then file a petition for child custody in court to seek decision-making authority and parenting time with his child.

For a same-sex couple, however, only one parent will have custody rights based on a biological relationship with the child unless the child has been adopted by the other parent.

If you are going through a same-sex divorce with a child involved, it might be easier for you to establish your parental rights. If both of you agreed for the child to be conceived during your marriage, a presumption will be created that both parents should have parental rights for the purpose of determining decision-making authority, child support, and parenting time.

Your most important consideration is what is in the child’s best interests. An attorney at Colburn Hintze Maletta can help you to evaluate your case under the “best interests” standard and determine the most appropriate course of action in a same-sex custody dispute.

Same-Sex Adoption Rights in Arizona

Same-sex couples have a right to adopt children in Arizona. Married couples can go through the normal adoption process to adopt a child through the foster care system, private adoption agencies, or through international adoption.

However, you must be in a marital relationship with your same-sex partner to adopt a child together. Arizona does not recognize second-parent adoptions.

Married Couple Same-Sex Joint Adoptions

Same-sex married couples can adopt children together through the same process heterosexual couples go through. You can adopt a child by working with an adoption agency or an adoption attorney.

Choosing the right adoption attorney to help you with a same-sex joint adoption in Arizona is critical. You should choose an attorney who believes in your rights to adopt children in the same way as any other married couple. Some adoption attorneys and agencies will not help same-sex couples.

The adoption attorneys at Colburn Hintze Maletta believe that same-sex couples should enjoy all of the rights that heterosexual couples do, including the right to adopt children. If you want to build your family, contact us today.

Same-Sex Stepparent Adoptions in Arizona

If your spouse already had a child before you were married, you can adopt the child through stepparent adoption. However, the child’s other parent’s rights must be legally terminated before you will be able to adopt the child as a stepparent.

Terminating a biological parent’s rights requires you to follow a specific process. At Colburn Hintze Maletta, our attorneys can help you to understand the requirements and guide you through the process.

If the child was adopted by your spouse alone, the process for completing the adoption would be the same as it is for any other couple. You will have to be married to your spouse for at least one year and have lived with the child for at least six months. If you have not, you will have to undergo a social study to adopt the child.

Single-Person Adoptions or Unmarried Couple Adoptions

In Arizona, unmarried couples are not allowed to jointly adopt children. Second-parent adoptions are not recognized. If you and your significant other want to jointly adopt a child, you will need to get married. Once you do, you can either adopt a child together or go through the stepparent adoption process.

LGBTQIA+ people who are single can adopt children in the same way that other single people can. To adopt a child as a single person, you have to be at least age 18, complete a home study, pass a background check, and prove that you are able to care for a child.

If you are able to meet these requirements, you should be allowed to adopt a child regardless of your LGBTQIA+ status.

Why Keeping Current with the Same-Sex Adoption Laws is Important

If you want to adopt a child as an LGTBQIA+ person, you should keep abreast with the changing adoption laws. The political climate in the nation provides good cause to worry about the future and whether the adoption laws might be changed. If you want to protect your rights to raise a child, completing a same-sex adoption as soon as possible is a good idea.

Same-sex couples also face other problems when they want to adopt. For instance, some adoption agencies will not work with same-sex couples or LGBTQIA+ individuals.

However, some birth mothers are fine with placing children with same-sex couples for adoption. Similarly, some adoption attorneys and agencies are also happy to work with same-sex couples for adoption.

One other consideration you should think about when you are wondering whether you should adopt the child of your same-sex partner is if the child is your partner’s biological child. Simply signing the birth certificate might not be enough to provide you with parental rights if your relationship ends. Working with an experienced attorney at Colburn Hintze Maletta can help you to protect your parental rights.

Your lawyer will analyze your situation and help you determine whether pursuing the adoption of your partner’s child is a good option. If the child has another biological parent, your attorney can help you to determine whether the other parent’s rights can be terminated and how to complete the process of stepparent adoption.

No matter which type of adoption you might want to complete, it is critical for you to work with a knowledgeable same-sex adoption attorney at Colburn Hintze Maletta.

Get Help from Colburn Hintze Maletta with Same-Sex Family Law Issues

Same-sex couples may encounter more complex family law issues both before, during, and at the end of their marriages. When you work with an attorney who is experienced with handling same-sex family law issues, you are likelier to secure a more favorable outcome.

The attorneys at the law firm of Colburn Hintze Maletta have handled many same-sex divorces, child custody matters, child support cases, spousal maintenance issues, property divisions, and adoption matters. We make sure to stay current with the evolving laws to help protect our clients’ rights.

For help with your same-sex family law issues, contact Colburn Hintze Maletta today to schedule a consultation by calling us at (602) 825-2500. We can analyze your situation and help you to understand your rights and legal options.

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