On October 6, 2014, the United States Supreme Court declined to hear cases coming from various US Circuit Courts of Appeal regarding the issue of same sex marriage and rulings finding the bans of various states on same sex marriages to be unconstitutional. One (or more) of those cases came from the 10th Circuit Court of Appeals, located in the heart of our booming metropolis, that being Denver.
From a legal analysis standpoint, by declining to hear or weigh in on those case, the US Supreme Court effectively let stand the decisions that the various state laws at issue in the Courts of Appeals cases were null and void. Colorado, including, of course Denver, is part of the 10th Circuit, which also includes Kansas, Wyoming, Oklahoma, New Mexico, and Utah. The specific rulings which strike down the laws prohibiting or curtailing same sex marriages are applicable throughout the circuit.
The intent of this post is not to weigh in on the hot button topic of same sex marriage. We are lawyers, not politicians or political pundits. Any opinion will offend one side or other of the debate. We don’t want to offend anyone. Whether same sex marriage if viewed by some as “right” and some as “wrong,” the legal fact is that the greenlight has been given for counties throughout the state to start authorizing same sex marriage, or rather not blocking such.
As same sex marriages evolve in Colorado, so shall same sex divorces. With the 2013 passing of the Civil Union bill in Colorado, Denver family lawyers have already seen changes to the domestic relations law legal landscape. Contrary to what some might have anticipated, those changes have not had a significant impact on the courts or us, as attorneys. In the few months since the Bill became law, we have talked to clients, or potential clients, regarding dissolution of civil unions, and have litigated civil union dissolutions. Realistically, the process for dissolving a civil union is almost identical to dissolving a marriage. There is no reason to believe that dissolution of a same sex marriage will be any different.
Colorado divorce law, from a substantive standpoint, affords relief to litigants related to an array of issues, including custody, visitation, division of property and debt, and alimony (maintenance). None of this will change when divorcing a same sex married couple. However, one can anticipate some intricacies which might arise.
At this time, the Colorado Civil Union Act acknowledges that the Internal Revenue Service does not recognize or treat civil unions the same as marriage from a tax standpoint. It stands to reason that so long as determined to be married, the IRS should treat same sex marriages the same as a marriage between a man and a woman. In a Colorado divorce setting, this should include rules related to claiming dependency exemptions, joint filings, and the division of retirement accounts via a Qualified Domestic Relations Order, which makes division of such accounts a non-taxable event. Social Security rules may not apply to same sex spouses, which could impact arguments related to alimony or division of retirement accounts.
As relates to custody, or parental responsibilities, there will be same sex spouses who have adopted children. If both parties are listed as the parents on the adoption, there should be no difference between a man vs. man custody fight or a man vs. woman custody fight. However, intricacies could arise in cases in which one party to the same sex marriage is the biological parent and the other is not. C.R.S. 14-10-123 makes provisions for non-biological parents to have certain rights related to custody or “parental responsibilities.” There could be some intricacies related to this. However, the issues that arise should really be no different than in cases where a stepparent might throw his or her hat into the legal arena regarding a non-biological child. Each court is charged with subjectively determining the best interest of a child and there could be variations on rulings or opinions from court to court or county to county. Justice should be blind as to the parents’ gender.
The issue of child support might get a little more complex due to the fact that Colorado statute, as currently written, does not necessarily make provisions for a non-parent to pay child support. Furthermore, in a same sex marriage, absent an adoption of a child by both parties being in place, the reality is that two people of the same gender cannot “biologically” both be the parents of a child. Thus, in a child support scenario, one could argue that there is a third person, of a different gender, not part of the same sex married couple, who might also have obligations under current child support statutes. There is case law to support the notion that one who seeks or asserts custody or parental responsibilities for a child also accepts the burdens of financial support. Ultimately, statute will catch up to this new legal development to ensure both parties to a same sex marriage in which there is a child of the marriage share a financial responsibility for the child. C.R.S. Title 19, Article 4 sets forth statutory presumptions of paternity, which include a presumption that a child born of a marriage is the husband’s child. Likewise, it sets forth a presumption that one who acknowledges paternity of a child may be bound to that acknowledgment. With the advent of same sex marriage, will there be new statutory provisions to establish “maternity?” Time will tell.
One issue to be determined will be how to deal with same sex persons already part of a civil union, in terms of whether that civil union will need to be dissolved prior to a same sex marriage being entered into. This is another topic for another day.
Overall, the arrival of same sex marriages will likely have little impact on the family law court system. Certainly, some laws will have to be adapted or enacted to account for changes, known and unknown, which will come. Ultimately same sex couples will be afforded the same legal rights as to all of the issues which might be litigated in a divorce case. Denver family law attorneys will need to adapt to any changes which stem from the Supreme Court’s decision to not enter a ruling. A small blip, or increase, in the caseload of both courts and family law attorneys may arise. As same sex couples in Colorado will now be afforded their right to marry, so shall they be afforded their rights to divorce. Regardless of gender, the Colorado family law lawyers at Plog & Stein will be ready to assist them.