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LGBTQ+ Family Law Attorney

For nearly a decade, since the U.S. Supreme Court ruling in Obergefell v. Hodges, same-sex couples have had the same right that opposite-sex partners have long taken for granted: the ability to marry the person they love. While marriage equality is now the law of the land in the United States, same-sex couples still face some issues that heterosexual partners typically do not. When family law issues arise, it is important for LGBTQ+ individuals to work with a family law attorney who understands their unique legal challenges.

At Brinkley Law Firm, we are committed to protecting the rights of our LGBTQ+ clients, whether they are in a same-sex partnership or a relationship with a person of the opposite sex. Our attorneys are experienced in handling the broad spectrum of LGBTQ+ family law issues with care and sensitivity.

LGBTQ+ Family Law Issues

When it comes to family law matters, LGBTQ+ individuals must deal with all of the same issues as individuals in opposite-sex couples: how to divide their property in a divorce, whether one spouse should pay alimony to the other, how to co-parent and support their minor children. In addition, there are other important considerations that primarily affect LGBTQ+ individuals and couples.

Child Custody Issues for LGBTQ+ Parents

Since 2017, married same-sex parents in South Carolina are both entitled to be listed on a child’s birth certificate, just as married parents of the opposite sex are. However, that does not automatically confer parental rights on the non-genetic parent should the parents later divorce. If other steps have not been taken to create a legal relationship between the non-genetic parent and child, the non-genetic parent may be denied custodial rights.

Another potential issue involves couples who use reciprocal IVF to build a family. In that process, one partner’s fertilized eggs are transferred into the other partner’s uterus so that that partner can carry and give birth to the child. This is a wonderful way for both partners to be involved in the pregnancy. However, if the genetic parent signed a standard egg donor agreement, they may have unwittingly signed away their parental rights and jeopardized their right to child custody should the couple later divorce.

Same-sex couples who want a child who is genetically related to at least one of them must use assisted reproductive technology (ART) and genetic material from a third party. It is not uncommon for a couple to create more embryos than they are able to use, and to freeze some of those embryos for potential later use. When those couples divorce, ownership of the embryos and their disposition is often a highly-emotional and hotly-contested issue.

LGBTQ+ parents who are married to a partner of the opposite sex may also face challenges to their child custody rights. Even if they are the genetic and legal parent of their child, they may face unfair discrimination in custody determinations due to their sexual orientation or gender identity.

In all of these scenarios, it is essential for parents to work with an attorney who is familiar with LGBTQ+ legal issues and parental rights in a South Carolina divorce.

Property Division and Alimony Issues in a Same-Sex Divorce

In a South Carolina divorce, equitable distribution of property divides assets that the couple accumulated during their marriage. Alimony awarded by a court is based, in part, on the length of the marriage.

Unfortunately, for LGBTQ+ couples, the length of their marriage may not accurately reflect what should be their right to property or support. Because same-sex couples couldn’t marry until 2015, they could not accumulate marital property together or have a marriage that would be considered “long-term.” That reality could yield an unfair result for couples who lived together and supported each other for decades.

In order for LGBTQ+ couples to divorce in a way that is truly equitable, it is important for each spouse to be represented by an attorney who understands these complexities.