Waterman: Ky. laws need a same-sex update

Law 1

Louis Waterman3:59 p.m. EST December 2, 2015

Louis Waterman, is a family law attorney with Goldberg Simpson and a fellow of the American Academy of Matrimonial Lawyers. In January 2015, Waterman was counsel in the first same-sex divorce granted in Kentucky. Email:lwaterman@nullgoldbergsimpson.com.

While the Kim Davis saga has engendered great controversy and much spilled-ink, it has obscured a number of matters that will have far greater impact on the lives of Kentuckians in the coming months and years.

Chiefly, after the U.S. Supreme Court ruling on same-sex marriage in Obergefell v. Hodges, everyday family law issues here in Kentucky are beginning to evolve at a rapid pace as lower courts address a tangle of out-of-date statutes, regulations and rules. The rudimentary business of the courts – wills, trusts, adoptions, prenuptial agreements, the division of property in divorce, and child custody issues – will be clouded when it comes to the Kentucky statutes. It is incumbent on the Kentucky General Assembly to update statutes last revised in 1972 to better conform to federal law and the new same-sex marriage environment.

Prior to Obergefell, same-sex couples were prohibited from jointly adopting a child in the commonwealth. Only one person could legally adopt. A same-sex partner was also prohibited from adopting their partner’s child.

With the U.S. Supreme Court ruling, Kentucky will see many second-parent adoptions within same-sex marriages. A second-parent adoption allows a second parent to adopt a child without the first parent losing his or her rights. It also enables second parents to directly contribute to a child’s general well-being when it comes to health care and education. Simple paperwork and permission processes are streamlined.

It is important that adoptive parents have the same rights as biological parents. A child’s lack of legal relationship with a partner can become a very difficult and emotional question for the courts. If the legally recognized parent passes away, a blood relative of the deceased parent might be appointed as guardian instead of the co-parent. The recognized relative might attempt to cut the children off from contact with the co-parent. Inheritance issues are also more likely to arise.

Another scenario is divorce. Without proper adoptive legal arrangements, child support, visitation and custody issues are even murkier. Surrogacy and donor matters can bring added uncertainty before judges.

Premarital agreements will be increasingly popular with same-sex couples. Those living together and sharing a home who decide to marry need to consider their property rights. If a home is only in one spouse’s name, it will only be treated as that spouse’s property. To be viewed under the law as marital property, a contract is crucial.

Even with proactive approaches to prevent legal battles and additional emotional anguish, same-sex couples will encounter Kentucky statutes that are far from gender neutral. “Husband” and “wife” and “mother” and “father” will frustrate judges, attorneys and their clients. Family courts are already distressed and backlogged. If the General Assembly fails to update its statutes using “spouse” and “parent,” it will take a number of court decisions that can be interpreted as precedent before there is greater clarity and additional equality in the eyes of the law.