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How Do The DOMA, Prop. 8 Rulings Affect Family Law Attorneys?

By William Peacock, Esq. | Last updated on

That's easy! More business!

Though the Supreme Court's Prop. 8 no-standing ruling in Hollingsworth v. Perry may only impact Californians, it does so in a huge way. Plus, the death of DOMA Section 3 in United States v. Windsor will have an even greater impact on issues of federal benefits for same-sex marriages, no matter what state you live in.

It's a whole new world of domestic relations after today, and here are just a few of the many things that may change:

Estate Planning

What was the origin of the DOMA dispute? Estate taxes. While today's ruling will greatly simplify things for your client (yay), and in the process, reduce your billable hours (boo), on the bright side, more married couples may mean more stable family units and more planning for those families' futures.

And while you won't be able to spend hours navigating the mismatch of federal and state laws that previously determined what rights a state-recognized, federally-ignored, marriage had in relation to estate planning, at least you can make up the difference in volume (hopefully).

Adoption and Surrogacy

With love, comes marriage. With marriage, often comes children. Now that the same-sex marriage milestone has been reached in 12 states and the District of Columbia, the next big hurdle is sorting out adoption and surrogacy laws.

Many states have laws and regulations that assume a man-and-wife couple. Other common issues include presumption of parentage for the gestational mother, which is especially tricky for lesbian couples, or one parent being genetically related to the child (i.e. one parent in a same-sex couple provides the egg or sperm) while the other lacks any legal rights absent formal adoption.

Some states, such as Ohio, prohibit gay couples from adopting or from using surrogacy altogether and apparently, if you are a gay couple, or single parent in Louisiana, surrogacy is about to become illegal for you as well.

Nobody ever said progress comes easy, right?


Okay, this one is cheating a bit, but with DOMA's heterosexist definition dead, immigration law just got infinitely easier for same-sex married couples. With the federal definition non-existent, and today's holding essentially stating that state definitions should be dispositive, so long as your client is in a state that recognizes same-sex marriage, such marriage-dependant procedures as fiancé visas should now become available.

Divorce and Custody

With marriage and children, often comes divorce and disputed custody. Today, it rains for you, dear divorce and custody attorney, and if the same-sex couple used the aforementioned inadequate surrogacy and adoption laws, that'll create even more issues for you to research, fight, and bill over.

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