The Legal Side of LGBTQ Relationships
Major recent shifts in legislation and case law have led to expanded rights and benefits for LGBTQ individuals. LGBTQ individuals face a number of challenges that cisgender, heterosexual individuals have never had to stop and think about.
Marriage and SeparationThere are special considerations that an LGBTQ couple should take into account. For starters, you can marry now. That's old news- you've be able to do that (in some states) for the better part of a decade. However, it was quite exciting at the time. There are many couples who went and got married that day, just because they could. Now, certainly, more reckless things have been done, but it should come as no surprise to you to find out that many of those couples are now regretting their spur-of-the-moment decision. For instance, many LGBTQ individuals who got married that day had pre-existing civil unions either with the same partner or a completely different one. Since both relationships are legally binding, they both have to be legally "undone". This can be further compounded by domestic partnerships being established , which may also need to be undone.
Another issue that's been cropping up is when LGBTQ couples divorce. If a couple had been together for 16 years prior to being able to marry, got married the first chance they got, and want to divorce 2 years later, how is the property divided? In many states, the length of the marriage has a big impact on how assets are divided and 18 years is a lot different than 2. This is also a question that remains unanswered in most jurisdictions, but certainly something to think about if you are in that position.
Parentage and AdoptionIn Iowa, for instance, if a child is born to a married couple, both of those parents' names go on the birth certificate, even if a child is born by IVF. This is generally only applicable when a biological female (Parent A) gives birth to a child via IVF and Parent B's (spouse) name is placed on the birth certificate as well. This is the gold standard as far as establishing parentage goes. No adoptions need to happen; no papers need to be signed. However, not all states are as understanding as Iowa. If that couple decides to move south, another state may not recognize non-bio Parent B as a legal parent. Many other states only recognize BIOLOGICAL parents as a child's legal parent. In this situation, that couple would want to do a second-parent adoption to protect non-bio Parent B's parental rights. Adoptions are also generally necessary for both parents even if a surrogacy contract exists and either egg, sperm, or both were used from the intended parents.
Gender and Name ChangesName changes, at least in some states, for an LGBTQ individual are really no different than name changes are for anyone else. It will require some paperwork and a hearing, but otherwise they can be pretty standard. The judge may very well ask why you want the name change, in which case, you can answer honestly. They mostly want to make sure people aren't changing their names "willy-nilly," so to speak.
Gender changes, on the other hand, get interesting. The topic hasn't been taken up with many State Supreme Courts yet, so there are no definitive answers for lawyers to look to besides what is written in the law. Currently, many state health departments require an affidavit from your treating physician stating that your sex designation has been permanently changed by SURGERY or other treatment. The definition of "surgery" is obvious, but what's less obvious is what exactly is meant by "other treatment.". Some transgender individuals, for a multitude of reasons, decide to do no actual medical treatment. If you've undergone no surgery, no hormone therapy, and no other medical treatment, what's left? Does individual psychological therapy constitute treatment in those cases? We don't yet have all the answers, but as long as an affidavit from a physician is obtained, we forge ahead.
The federal government, on the other hand does not have such stringent requirements. They only require a certified letter from the physician who treated you or evaluated your medical history, stating that you have had "appropriate clinical treatment" for gender transition.
Estate PlanningMany LGBTQ couples who have been together for decades didn't run out and get married the first chance they got. For many reasons, couples decide not to marry, but still want to make sure their partner is cared for after they've passed. You've probably heard of partners doing an adoption (partner A adopts partner B). This, mainly, helps people avoid certain taxes upon one partner's death. That may be the right answer for you. However, other options exist for LGBTQ couples. For instance, setting up a trust with all of the partners' various assets may be beneficial. Perhaps each partner needs to set up their own trust. If two partners aren't married, how does one receive military benefits, or health benefits from the other? The needs of individuals in this respect vary widely, and need to be considered appropriately. Make sure you hire an attorney who can help to pinpoint and tackle your specific needs.