Same Sex Marriage/Divorce

State threatens officials who refuse same-sex marriages with civil, criminal penalties

Published on: October 23, 2014 | On behalf of Arnold & Smith, PLLC

Matthew R. Arnold of Arnold & Smith, PLLC answers the question “Can any attorney help me with my family law needs in North Carolina?”

A memo has been sent by North Carolina’s Administrative Office of the Courts to all magistrates, judges and court clerks in the Tar Heel State warning that if they refuse to officiate same-sex weddings, they may be suspended, removed from office, and may face criminal charges.

According to the memo, refusing to perform same-sex weddings is a willful violation of a magistrate’s duty to uphold the Constitution of the United States.

At least three magistrates in North Carolina have refused to officiate same-sex weddings. On Monday, a magistrate in Elizabeth City refused to perform a marriage ceremony for a male couple. Another magistrate married the couple Tuesday, and according to the Daily Advance, the now-married men do not plan to file a formal complaint against the magistrate who refused them service.

A magistrate in Rockingham County quit his job because he said performing same-sex wedding ceremonies would violate his religious beliefs, according to the Raleigh News & Observer. The Times News reported that an Alamance County magistrate refused to perform same-sex marriages and expected to be out of a job because of the refusal.

The memo from the Administrative Office of the Courts warns that magistrates who “willfully omit, neglect or refuse to discharge any of” their duties “shall be guilty of a Class 1 misdemeanor.”

Second N.C. judge strikes down marriage ban, dismisses same-sex adoption actions

Published on: October 16, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte Divorce Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “Who pays for the children’s health insurance and co-pays?”

North Carolina’s ban on same-sex marriage took another blow on Wednesday. United States District Court Judge William L. Osteen, Jr. ruled that the Tar Heel State’s 2012 state constitutional amendment prohibiting same-sex marriage was unconstitutional.

Judge Osteen ruled that the state could not prevent same-sex couples from marrying and could not prohibit the recognition of lawful same-sex marriages consummated in other states. Judge Osteen enjoined the state and its officers from enforcing the same-sex marriage ban. Attorney General Roy Cooper already announced this past July that he would not enforce the ban.

Judge Osteen dismissed claims brought by six same-sex couples “concerning the adoption laws of North Carolina.” In their complaint in Fisher-Borne v. Smith, et al., the couples alleged that so-called “second parent adoption is the only way that a family in North Carolina with gay or lesbian parents can ensure that both parents have a legal relationship with the child” and enjoy the benefits and protections “of a legally-recognized parent-child relationship with both parents.”

Plaintiffs Marcie and Chantelle Fisher-Borne of Durham alleged that their children faced potential exclusion from private or public health benefits, veterans’ benefits, disability or social security benefits, life insurance benefits and workers’ compensation benefits. Marcie gave birth to six-year-old Miley, while Chantelle gave birth to two-year-old Elijah. To date, North Carolina law has prohibited Marcie from adopting Elijah and has prevented Chantelle from adopting Miley.

The North Carolina Supreme Court upheld the prohibition on second parent adoptions in 2010 in Boseman v. Jarrell, a case that arose out of a child-custody dispute involving former North Carolina State Senator Julia Boseman and her former partner.

Same-sex is marriage legal in North Carolina; what comes next?

Published on: October 14, 2014 | On behalf of Arnold & Smith, PLLC

Matthew R. Arnold of Arnold & Smith, PLLC answers the question “Can any attorney help me with my family law needs in North Carolina?”

Buncombe County Registrar Drew Reisinger stayed at work late this past Friday to issue a marriage license to Amy Cantrell and Lauren White. Cantrell and White became the first same-sex couple in Buncombe County to be married after United States District Court Judge Max O. Cogburn, Jr. struck down the Tar Heel State’s same-sex marriage ban. Cogburn’s order came a little after 5:00 p.m. Friday.

Reisinger stayed on after closing time to issue marriage licenses to Cantrell, White and 19 other couples. He said it had been heartbreaking to have to deny licenses to same-sex couples “based on discriminatory laws” and that it was an honor to finally be able to say yes.

Cogburn ruled that “North Carolina’s laws prohibiting same-sex marriage are unconstitutional as a matter of law.” Cogburn is a judge in North Carolina’s Federal Western District, however North Carolina Attorney General Roy Cooper told reporters Friday that Cogburn’s ruling applies statewide.

Within minutes of Cogburn’s order, register of deeds offices statewide became the focal point for the legal, social and political surge in favor of same-sex marriage. The Asheville-Citizen Times reported that “couples who brought ministers with them began exchanging their vows on the steps outside the register of deeds” while other couples lined up at the counter inside to obtain licenses.

High court’s inaction means same-sex marriage coming to NC by end of this week

Published on: October 7, 2014 | On behalf of Arnold & Smith, PLLC

Matthew R. Arnold of Arnold & Smith, PLLC answers the question “Can any attorney help me with my family law needs in North Carolina?”

The Charlotte Observer is reporting that same-sex marriage could be legal soon in North Carolina—by the end of this week!

Virginia put the issue to its voters eight years ago, and 57-percent of Virginians voted to amend that state’s constitution to define marriage as between a man and a woman. The Virginia amendment also forbade the state from recognizing same-sex marriages formalized in other states.

North Carolina law has always defined “A valid sufficient marriage” as one “created by the consent of a male and female person.” Voters in the Tar Heel state sought to eliminate any doubt about their stance on the issue in 2012, voting 61-percent to 38-percent in favor of a state constitutional amendment that defines marriage as between one man and one woman and bans any other type of civil union or domestic partnership.

Virginia’s amendment—passed eight years ago—has seen its legal challenges litigated all the way to United States Court of Appeals for the Fourth Circuit—the highest appellate court to consider cases from that state short of the United States Supreme Court. The Fourth Circuit struck down Virginia’s amendment, ruling that the ban violated gay couples’ fundamental right to marry.

Think same-sex marriage is tough? Try same-sex divorce

Published on: September 30, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte Divorce Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What does a “No-Fault’ divorce mean in NC?”

Proponents of same-sex marriage have railed against the legal difficulties that confront same-sex partners interested in tying the proverbial knot. Now some same-sex couples are facing a different—and perhaps even more difficult—legal issue: same-sex divorce.

Beth Littrell, a senior attorney for the civil rights group of Lambda Legal’s Southern regional office in Atlanta, told the Associated Press that divorce for same-sex couples is a legal mess. Lambda Legal is a national organization whose mission is to help lesbians, gay men, bisexuals and transgendered people obtain full recognition of civil rights. While same-sex marriage is legal in nineteen states and the District of Columbia, state laws governing divorce have not evolved with same-sex marriage, leading to confusion, frustration and years of litigation.

Cori Jo Long and Brooke Powell travelled from their home in Texas to New Hampshire in 2010 in order to take advantage of the latter state’s permissive laws on same-sex marriage. Their marriage unraveled in 2013, but so far they have been unable to obtain a divorce. Long and Powell attempted to divorce in Texas, but since that state does not recognize same-sex marriage, a judge ruled that he did not have jurisdiction to void their union or grant a divorce.

“It is limbo,” Long said. “It’s waiting and seeing. That’s all I can do.”

Reporter, advocates say allowing same-sex marriage would cause wedding-business boom

Published on: August 14, 2014 | On behalf of Arnold & Smith, PLLC

Board Certified Family Law Specialist Matt Arnold of Arnold & Smith, PLLC answers the question “Can any attorney help me with my family law needs in North Carolina?”

A 40-year veteran of the Asheville Citizen-Times says gay weddings would mean big business to Asheville. The only thing standing in the way is North Carolina law.

Dozens of scenarios could play out, “depending on decisions made at almost every legal level, from the state attorney general to the General Assembly to the Supreme Court,” wrote reporter Barbara Blake in an Aug. 3 article. She cited a July 28 ruling by the 4^th Circuit Court of Appeals striking down Virginia’s same-sex marriage ban and wrote that the way was paved for North Carolina courts to do the same.

That may be wishful thinking on the part of Blake and advocates of same-sex marriage. But as Blake points out, more than a few businesses may stand to benefit from a change in the law.

Asheville is already a destination for marriages and marriage celebrations and is considered a “gay-friendly city,” Blake wrote. Most business owners quoted in Blake’s story said they were open to all couples, and did not market themselves specifically to gay couples. The owners of one event-planning and floral design company—life partners Bobby Hill and Mark Arrington—said “the prospect of a new population of brides and grooms is exciting.” They conceded, however, that they had no plans to advertise specifically to the “gay market.”

Sue Sylvester From “Glee” Announces Split From Wife Of Three Years :: Separation and Divorce Lawyers in Charlotte, North Carolina

Published on: May 30, 2013 | On behalf of Arnold & Smith, PLLC

Attorney Matthew R. Arnold answering the question: “My wife and I are not getting along If I leave the house, can she get me for abandonment?”

Jane Lynch and her wife of three years, Lara Embry, have decided to split. The couple issued a statement saying that while the two deeply care about one another, they have decided to part ways.

Lynch, who is famous for playing coach Sue Sylvester on “Glee”, married Embry, a psychologist, in 2010 in Massachusetts. The couple met at a fundraiser in 2009 and hit it off right away. Embry had two young children at the time the two met, one of which lived full time with the couple after the wedding.

The divorce will mark the end of Lynch’s time as a stepmother given that she has no legal rights or responsibility over the children since that they were the product of Embry’s earlier marriage. It’s a sad split for Lynch who recently gave an interview to People Magazine where she discussed how close she had become with Embry’s children and how amazing it felt to have children to care for.

Lynch’s marriage calls to mind the split last year of one of the first gay couples to marry in California, Robin Tyler and Diane Olson. The pair was part of the original group of same-sex couples who challenged the state’s same-sex marriage ban back in 2008. The two women had known each other for 40 years and were a couple for 18. Despite being a poster child for gay and lesbian rights, Tyler said that in the end, they were only human and couldn’t help running into difficult times. In the end, the marriage simply ran its course.

Bizarre Argument Becomes Focus Of Gay Marriage Case Before Supreme Court

Published on: February 21, 2013 | On behalf of Arnold & Smith, PLLC

In a recent amicus brief filed with the U.S. Supreme Court, the Obama administration attacked a legal argument that some see as key to the movement against gay marriage: that gay couples cannot accidentally become pregnant and thus do not require access to marriage. The argument is central to two major gay marriage cases before the nation’s highest court: Hollingsworth v. Perry about California’s gay marriage ban and U.S. v. Windsor which is challenging DOMA.

The attorney representing those supporting DOMA (the federal Defense of Marriage Act) wrote that opposite-sex couples have a unique tendency to produce unintended offspring. The attorney, Paul Clement, went on to say that because same-sex couples cannot naturally produce children, the government has a legitimate interest in solely recognizing those marriages between men and women because this can encourage them to form stable family units to raise children. Those opposed to gay marriage also argue that by allowing gay couples to marry it may discourage other straight couples from marrying, thus harming a legitimate government interest in encourage procreation.

The Obama administration said it was ridiculous to pretend that marriage is merely society’s way of dealing with unintended pregnancies. The brief also said that gay marriage would neither help nor hurt straight couples who might want to marry.

Same-Sex Adoption Laws Lead ACLU to Sue North Carolina

Published on: May 29, 2012 | On behalf of Arnold & Smith, PLLC

The same-sex marriage controversy in North Carolina deepened after it was recently announced that the American Civil Liberties Union (ACLU) filed suit against the state to overturn their laws that prevent gay and lesbian couples from adopting their partners’ children. The lawsuit was filed on behalf of six couples from the state who are seeking to adopt the children of their partners.

The couples are attempting to receive what’s known as a second parent adoption. This occurs when one unmarried partner adopts the other’s biological or adopted child. The North Carolina Supreme Court has banned such second-parent adoptions for same-sex couples. The ACLU claims that the law prevents same-sex couples from providing for the safety and securing of their children by not allowing them to be adopted.

In 2010, the state Supreme Court held that a lower court made a mistake by approving an adoption by a woman’s same-sex partner. The justices ruled that the same-sex partner was not a legally recognized parent of the minor child. The case at issue involved attempts by former State Sen. Julia Boseman, D-New Hanover, the legislature’s first openly gay member, to adopt her former partner’s biological son.

In their brief the ACLU says that, “There is no basis for the state automatically and categorically to reject any petition for second parent adoption by gay or lesbian parents – without even considering what is best for the children.” The group continues, arguing that, “The question of whether an adoption by a second parent is in an individual child’s best interest can be determined only through an individual review process, not through categorical bans such as that applied in North Carolina.”

The ACLU says that some of the benefits that come with a second-parent adoption include: ensuring that the children in the family are covered if one partner lacks health insurance; ensuring that families will stay together and children will not be taken from their home if something should happen to the biological parent; and ensuring that either parent will be allowed to make medical decisions or be able to be at their child’s bedside if one of their children is hospitalized.

Gay Divorce without Gay Marriage?

Published on: May 8, 2012 | On behalf of Arnold & Smith, PLLC

We’ve all read the articles about North Carolina voters’ decision to approve the constitutional amendment banning gay marriage. The issue is very controversial and has generated nationwide attention. But what about gay divorce? Like any other relationships, gay marriages can sometimes go bad. And, although gay marriage is not recognized still in many states, courts are having to grapple with what to do when a legally married gay couple wants to end things. One Ohio judge recently saw just such a case and decided to permit gay divorce in a state that doesn’t recognize gay marriage.

Two men from Columbus, Ohio, Jonathan Baize and Stephen Wissman, were granted a divorce in March by a judge with the Franklin County Domestic Relations Court. While it is certainly unusual for both parties in an Ohio divorce proceeding to be of the same sex, one attorney who was present at the hearing described the proceedings utterly “unremarkable.” Rather than serve as a historic moment in the state, the divorce was simply paperwork.

The two men married not long ago, on September 1, 2011, at a ceremony in New York State. They then returned home to Ohio but decided to divorce soon thereafter, a decision that has important implications for Ohio law. In 2004, Ohio voters approved an amendment to the state’s constitution that prohibited gay marriage. Supporters of the amendment have argued that by allowing a gay divorce a court would be forced to tacitly acknowledge that a marriage was valid in the first place.

Proponents of the decision turn to the letter of the law and point out that the amendment refers only to marriage and does not deal with same-sex divorce. The judge handling the case apparently agreed and decided to dissolve their relationship.