In this helpful article about Same Sex Family Law in Arizona, we'll discuss the following:
Understanding Same Sex Family Law in Arizona
In 2014, same-sex marriage became legal in Arizona when a federal court ruled that the state’s constitutional amendment prohibiting it was unconstitutional. The state decided not to appeal the decision, allowing same-sex couples to marry legally.
Following this, the United States Supreme Court made a landmark decision in 2015 with Obergefell v. Hodges, which declared same-sex marriage legal in all 50 states.
Couples in Arizona now have the option to either enter into domestic partnerships or get married.
The state’s same-sex marriage laws cover a range of legal matters such as marriage, divorce, adoption, child custody, and property division. As the laws continue to evolve, it’s essential to seek the advice of experienced family law attorneys if you encounter any issues covered by Arizona’s same-sex marriage laws. Our experienced legal team can provide you with the legal guidance you need.
In this article, we’ll provide answers to the top 10 frequently asked questions about same-sex family law in Arizona.
Arizona’s Right to Marry Laws
In a landmark decision in Connolly v. Jeanes, 73 F.Supp. 3d. 1094 (201), and Majors v. Horne, 14 F.Supp. 3d 1313 (2014), a federal court ruled that Arizona’s restrictions on same-sex marriage were unconstitutional. The state chose not to appeal the ruling, leading to Arizona’s legalization of same-sex marriage. The historic Obergefell decision in 2015 extended this right to all 50 states.
In addition to legalizing same-sex marriage, Phoenix and Tucson allow couples, both heterosexual and same-sex, to register domestic partnerships and civil unions.
In Phoenix, couples must meet certain requirements, such as living together in Phoenix, being at least 18 years old, and not already being in a civil union, domestic partnership, or marriage with someone else.
Similarly, in Tucson, couples must be 18 or older, not related to a degree prohibited in Arizona, and already living together in a supportive relationship.
It’s worth noting that same-sex couples in Arizona are now entitled to the same benefits and rights as opposite-sex couples, such as coverage under the Family and Medical Leave Act and access to spousal health care coverage and benefits.
If you are in a same-sex marriage, you may need to update your life insurance and 401(k) beneficiary to ensure your spouse is correctly designated. At our law firm, we can provide you with the guidance and support you need to navigate these legal changes.
Same-Sex Divorce Laws in Arizona
When same-sex couples divorce, the legal process is generally similar to that of opposite-sex couples. However, there may be additional complexities to consider. For instance, many same-sex couples lived together for years before legalizing same-sex marriage. They may have acquired a good amount of property together before their official marriage.
Since Arizona law treats assets brought into a marriage as sole and separate property, mixing these assets with joint assets during the marriage can complicate the legal proceedings. Assets acquired during the marriage are treated as community property and would be divided accordingly.
To mitigate this issue, it may be advisable for same-sex couples to create a prenuptial or antenuptial agreement that details how their assets will be divided and whether spousal maintenance may be awarded. In addition, spousal maintenance may be a concern, particularly if a couple lived together for a long time before getting married.
It’s important to note that Arizona law only considers the years of marriage when determining spousal maintenance, not the entire time a couple cohabitated.
Addressing these concerns in a prenuptial or antenuptial agreement or during divorce negotiations can help ensure a fair outcome.
If you were married in another state, you can still get divorced in Arizona, provided that you or your spouse has lived here for at least 90 days.
Seeking the advice of an experienced divorce attorney who is well-versed in the laws that apply to same-sex couples is a wise move. Our attorneys have extensive experience handling LGBTQIA+ issues in family law and can provide you with guidance and support.
In most cases, reaching a settlement agreement through negotiations is the most efficient and cost-effective way to secure a favorable outcome.
However, a judge will ultimately make the final decision when an agreement cannot be reached. In such cases, our experienced attorneys can litigate the outstanding issues on your behalf at a divorce trial.
Child Custody and Parenting Time in Same-Sex Divorce Cases
When unmarried heterosexual couples have children, the unmarried father can establish paternity to secure his rights as a parent. Once paternity is established, the father can then petition the court for child custody and decision-making authority, including parenting time with the child. However, for a same-sex couple, the biological parent is the only one with custody rights unless the non-biological parent adopts the child.
In the case of a same-sex divorce involving a child, establishing parental rights may be more complicated, especially if neither parents are the biologocal mother or father, but the couple adopted a child during the marriage.
If both parties agree to conceive the child during the marriage, a presumption will exist that both parents should have parental rights when determining decision-making authority, parenting time, and child support.
The most critical consideration in any custody dispute is what’s best for the child. An experienced attorney at our firm can help you evaluate your case under the “best interests” standard and determine the most appropriate course of action in a same-sex custody dispute. We understand the unique challenges same-sex parents face and can provide you with the guidance and support you need to navigate this complex area of family law.
Child Adoption to Same-Sex Couples
Arizona law allows same-sex couples to adopt children. Married couples can follow the standard adoption process through the foster care system, private adoption agencies, or international adoption.
However, to adopt a child together, you must be in a marital relationship with your same-sex partner, as Arizona does not recognize second-parent adoptions.
For married same-sex couples, joint adoption follows the same process as it does for heterosexual couples. Choosing the right adoption attorney or agency is critical, as not all may work with same-sex couples.
We believe in the right of all couples, including same-sex couples, to adopt children and can provide you with the legal guidance and support you need.
If you are a stepparent looking to adopt your spouse’s child, you will have to go through the stepparent adoption process. If the child’s other parent’s rights have not been legally terminated, you will need to follow a specific process that our experienced attorneys can guide you through.
Unmarried couples are not permitted to adopt children jointly in Arizona, and second-parent adoptions are not recognized. If you and your partner want to adopt a child together, you will need to get married first.
Alternatively, single LGBTQIA+ individuals can adopt children in the same way as other single people, provided they meet specific requirements such as being at least 18 years old, passing a background check, and demonstrating their ability to care for a child.
Our attorneys can help guide you through the adoption process and ensure that your rights are protected.
Same Sex Family Law
Yes, same-sex couples can legally marry in Arizona since the Supreme Court’s ruling in Obergefell v. Hodges in 2015.
Yes, Arizona is required to recognize valid same-sex marriages performed in other states under the Full Faith and Credit Clause of the U.S. Constitution.
Yes, same-sex couples can adopt in Arizona and have the same rights and responsibilities as opposite-sex couples.
There is a 60-day waiting period for all divorces in Arizona, including same-sex divorces.
Yes, a same-sex spouse can receive alimony in Arizona just like an opposite-sex spouse.
Yes, a same-sex parent can receive child custody in Arizona and has the same rights and responsibilities as an opposite-sex parent.
Yes, a same-sex partner can adopt their partner’s biological child in Arizona through a second-parent adoption.
Yes, a same-sex spouse can inherit property from their partner in Arizona through intestacy laws or a will.
No, Arizona does not recognize registered domestic partnerships or civil unions for same-sex couples.
Yes, a same-sex spouse can change their last name after marriage in Arizona through the standard legal name change process.
Same Sex Family Law
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Every same-sex family law case can have its complications. We’re here to ensure that it goes smoothly and is beneficial to our clients.
