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Top 10 Family Law Issues for Same-Sex Couples

By Betty Wang, JD | Last updated on

While this week's historic U.S. Supreme Court rulings are giving many gay couples cause to celebrate, let's not forget about family law.

Thanks to the Court's ruling on California's Prop 8, same-sex nuptials have already resumed in the nation's most populous state. And thanks to the Court's ruling on DOMA, many married gay couples are now eligible for a wide range of federal benefits.

So celebrate first. But then, you may want to consider the following Top 10 family law issues for same-sex couples:

  1. Marriage. Ready to take the plunge and commit? One of the things you should consider right away is your prenuptial agreement. But be careful what you agree to: A prenup generally can't include provisions like child support and custody, or which spouse will perform which chores.
  2. Cohabitation. Not quite ready for marriage or a civil union? Consider cohabitation instead, and learn about the legal differences. You may even want to draft a cohabitation agreement for you and your partner to sign.
  3. Taxes. With the federal definition of marriage no longer limited to opposite-sex couples, gay spouses now have the option to file jointly for federal tax purposes. Tax Day may seem far off, but it may be wise to consult an experienced tax lawyer now, to figure out how this will affect you and your assets.
  4. Adoption. Adoption is one of the routes that same-sex couples can take when they're ready for their own little one. Still, not all adoption agencies are friendly to gay couples. Check out our comprehensive section on Same Sex Adoption to learn more about the process and the legal issues involved.
  5. Surrogacy. Surrogacy is another popular option for many gay couples. Again, just like adoption, there are a lot of legal factors to consider.
  6. Domestic violence. Unfortunately, domestic violence is one of the most common crimes to occur among couples and families. Make sure you recognize it and protect yourself if you fall victim to it.
  7. Hospital visitation rights. Under a federal policy adopted in 2011, same-sex spouses and partners can already get hospital visitation rights, San Francisco's KQED radio reports. But many gay partners have been denied this right, especially in states that don't recognize gay marriages. If this happens to you, it may time to get an experienced lawyer on your side.
  8. Divorce. Unfortunately, not all marriages last forever. Not sure where to begin? Download our free Guide to Divorce and Property Division for a concise overview.
  9. Spousal and child support. Along with property division, spousal support and child support can also be contentious issues for divorcing couples. Thankfully, we have free PDF guides on these topics as well.
  10. Estate planning. The Supreme Court's DOMA ruling means gay spouses can now claim the federal estate tax deduction. This, after all, was the main reason plaintiff Edie Windsor sued over DOMA in the first place. Talk to an experienced estate planning lawyer to see how this week's historic rulings may affect you.

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