ISSUES REMAINING AFTER THE LANDMARK SCOTUS
DECISION IN THE Obergefell SAME-SEX MARRIAGE CASE
Domestic Partner Benefits
After the Supreme Court ruling in Obergefell, companies began to discontinue benefits for domestic partners. Prior to same-ex marriage being legal everywhere in the United States, many companies offered such benefits for qualifying members living with a significant other but not married. Often these benefits applied to couples in same and opposite-sex relationships alike. In many cases these benefits were offered due to the fact that same-sex partners could not legally marry and gain access to spousal benefits. After the Supreme Court ruling, however, the concern that some couples would never have access to spousal benefits was removed so some companies began to eliminate domrachestic partner benefits. This has previously been seen by Verizon, Delta Air Lines, IBM, and Corning, all of which eliminated these benefits in states where same-sex marriage had been legalized.
Cohabitation Agreements
Prior to marriage being legal in Indiana, some same-ex couples may have entered into cohabitation agreements in order to gain legal protections. In some instances these couples may have been married in other states, but executed the agreement in order to have legal protection in Indiana when Indiana refused to recognize their marriage. The question now will be if such agreements are still in effect. Indiana’s dissolution laws would control if the relationship ended unless the agreement anticipated the marriage being legally recognized in Indiana at a later date. Any cohabitation agreements which were entered by same-sex couples whose marriage is now recognized in Indiana should be reviewed by an attorney.
Presumption of Parenthood
Indiana’s statutes provide that a child born in wedlock is presumed to be the child of the Husband. §31-9-2-15, §31-14-7-. This presumption is rebuttable, as is reiterated in In re the Matter of I.J., ___ N.E.3d ____ (Ind. Ct. App. July 8, 2015). In that case the biological father had registered with the putative father registry within 30 days of the child’s birth and, therefore, had a right to rebut the presumption in order to challenge the adoption. At this time, the State of Indiana takes the position that this presumption is not similarly applied to a child born to a woman married to another woman. The State takes the position that non-irth mother is not presumed to be a parent of the child and must adopt the child in order to have such legal protections. Our firm is currently co-counsel on the litigation of Henderson et al v. Adams, et al under case number 1:15-cv-00220-TWP-MJD in the United States District Court for the Southern District of Indiana challenging the State’s position. There are cases pending throughout the United States raising the same or similar issues. The practical effect of the state’s position is that children born of a lesbian married couple who have used artificial insemination through a medical facility has only one parent. Until Henderson is resolved, the only safe way to guarantee parenthood by the non-childbearing spouse is to go through the costly process of an adoption.
Issues with Artificial Insemination
In In Re Paternity of MF, 938 N.E. 2d 1256 (2010), the Court of Appeals addressed a sperm donor agreement which included the donor waiving all parental rights and birth mother waiving all financial support from donor. The court held that such agreements could be enforceable if they comply with the Uniform Parentage Act and Uniform Status of Children of Assisted Conception Act. Because birth mother did not meet her burden to invalidate the agreement as void against public policy, the Court of Appeals upheld the agreement as to the one child contemplated by it. A second child was born to birth mother with sperm from the same donor; however, the court held that the donor agreement only contemplated one child and, therefore, did not apply to any further children. The Court remanded the case for the trial court to establish the donor’s paternity as to the second child.
Prepared by Megan Clearwaters and Richard A. Mann of Richard A. Mann, P.C. Attorneys at law. www.rmannlawoffice.com