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WILL NEW KINDS OF FAMILIES LEAD TO NEW LEGAL BATTLES?

By now, many Arizona family lawyers have heard that the Arizona ban on same-sex marriages has been overturned by the courts. The recent District Court of Arizona decision acknowledges that the decision the 9th Circuit Court of Appeals reached earlier this month concerning the bans in Idaho and Nevada applied to Arizona's laws as well. (Read the full opinion here: http://documents.latimes.com/arizona-opinion-1017-2014/) But even as same-sex couples are lining up to receive marriage licenses, there are still legal questions which remain unanswered.

Same-sex marriages will undoubtedly lead to a certain number of same-sex divorces but it's not immediately clear how Arizona family courts will react to the novel facts of these cases. The issues are likely to arise first among the group of same-sex couples who married in another state, because Arizona must now recognize those marriages. That fact probably won't change the basic rules of dividing assets, but one can imagine a party questioning, for example, when his or her marriage truly began if the law preventing them from being "officially" married has since been ruled unconstitutional. In the past, some same sex couples who wished to live together created "Domestic Partnership Agreements" regarding their property and debts. If those couples now choose to marry, how will the courts treat those agreements?

What about kids? The new ruling potentially opens up several avenues for same-sex partners to adopt children, or for a non-parent partner to be treated as a "step-parent" for adoption purposes. Such couples may also qualify to be treated as a "family" for purposes of obtaining a family name change. On the other hand, a partner in a same-sex marriage would not necessarily have parental rights to a child even if the child had been brought up by both partners jointly. Some same sex couples have arranged to conceive a child under circumstances where neither partner knows for certain whose genes the child carries. Under the current law in Arizona, only the genetic parent is a "true" legal parent and while a genetic test could answer the biological question, it's worth asking whether that should suffice to answer the legal question of parentage.

Because the U.S. Supreme Court ruled last year in the Windsor decision that the Federal government must extend the legal benefits of marriage to members of same sex unions in states which recognize those unions as legal marriages, a whole host of federal benefits (for example social security and federal pensions benefits) will now be available to same-sex couples in Arizona who choose to wed. The same considerations may now open up a lot of new questions for same sex couples in planning their estates.

We can't pretend to have all the answers, especially since many of them are still to be determined, but if you have legal questions about family matters, we encourage you to make a free 30-minute appointment with one of our skilled family law attorneys at Donaldson Stewart, P.C..

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