Revise Ky. laws to adjust for same-sex divorce

Since the U.S. Supreme Court ruling on same-sex marriage in Obergefell v. Hodges, everyday family-law issues in Kentucky are evolving at a rapid pace as lower courts address a tangle of out-of-date statutes, regulations and rules.

The rudimentary business of the courts: wills, trusts, adoptions, prenuptial agreements, the division of property in divorce and child-custody issues will be clouded when it comes to Kentucky statutes. It is incumbent on the General Assembly to update statutes (last revised in 1972) to better conform to federal law and same-sex marriage.

Prior to Obergefell, same-sex couples were prohibited from jointly adopting a child in Kentucky. Only one person could legally adopt. A same-sex partner was also prohibited from adopting their partner’s child.

Kentucky will see many second-parent adoptions within same-sex marriages. A second-parent adoption allows a second parent to adopt a child without the first parent losing rights. It also enables second parents to directly contribute to a child’s well-being when it comes to health care and education. It is important that adoptive parents have the same rights as biological parents. A child’s lack of legal relationship with a partner can become a very difficult and emotional question for the courts.

If the legally recognized parent passes away, a blood relative of the deceased parent, as opposed to the co-parent, might be appointed as guardian. The recognized relative might attempt to cut the children off from contact with the co-parent. Inheritance issues are also more likely to arise.

Another scenario is divorce. Without proper adoptive legal arrangements, child support, visitation and custody issues are even murkier. Surrogacy and donor matters can bring added uncertainty before judges. Premarital agreements will be increasingly popular with same-sex couples. Those living together and sharing a home who decide to marry need to consider their property rights. If a home is only in one spouse’s name, it will only be treated as that spouse’s property.

Yet even with proactive approaches to prevent legal battles and additional emotional anguish, same-sex couples will encounter Kentucky statutes that are far from gender neutral.

“Husband” and “wife” and “mother” and “father” will frustrate judges, attorneys and their clients. Family courts are already distressed and backlogged.

If the General Assembly fails to update its statutes using “spouse” and “parent,” it will take a number of decisions of appeals courts that can be interpreted as precedent before there is clarity and equality in the eyes of the law.

This story was originally published February 23, 2016 at 6:31 PM with the headline "Revise Ky. laws to adjust for same-sex divorce."