Family Law and Your Domestic Partnership/Same Sex Marriage

Kentucky has never been an easy place to try and maintain a domestic partnership; ordinary family law concerns have long been subordinate to the intrusions of culture war issues from the political realm.  In examining Kentucky law on domestic partnerships, in my opinion, our statutes have been drawn to clearly define marriage as a heteronormative institution - as a matter of official governmental policy, we deny recognition of same sex unions as well as the decrees of other states with regard to those unions.  Compounding this, Section 233A our Constitution makes it impossible to unwind those statutes by a vote of the majority of the legislature as it definitively prohibits any recognition as a matter of organic law that cannot be undone by a vote of the General Assembly.

Things have changed quite a bit since Kentucky amended its Constitution by adding Section 233A.  Since adoption in 2004, the number of same sex unions has increased significantly due to the expansion of the number of jurisdictions where these can be formed, and with that increase comes the normal and predictable phenomenon of marital discord and the need for dissolution of troubled relationships.  Also, significant portions of the 1996 Defense of Marriage Act have been deemed unconstitutional by the Executive Branch and by some Federal Circuit, District and Bankruptcy Courts, resulting in a legal environment where people's legal rights and obligations change in great degree due to the mere existence of these validly issued marriage certificates.  These rights and obligations go to such myriad issues as means testing of combined marital incomes in bankruptcy, tax ramifications, beneficiary designations on pensions or retirement funds, ancillary probate administrations, the application of bigamy statutes and the ability to remarry.

These ramifications exist regardless of any Kentucky pronouncement of non-recognition; the marriage certificates exist, and pretending that they don't simply won't cure the problem.  Inasmuch as most states require at least six months (some require a year) of residency to obtain a dissolution of a marriage, there are very few people who need to exit a civil union that have the resources to explore such an option.  The option of simply encouraging people to confine themselves to Kentucky borders and permanent non-recognition of valid foreign marriages isn't an option either, considering the Federal and probate ramifications of the existence of a valid marriage certificate (not to mention the implications that could arise from the eventual litigation over the Full Faith and Credit clause of the Constitution).

Currently, there are some signs of change in the wind (at least here in Louisville).  Recently, a pair of business owners was allowed to file a bankruptcy as a married couple.  While bankruptcy counsel was prepared for significant legal argument over the applicability of DOMA, the office of the United States Trustee is now taking the view that they will allow these filings to take place without objection, a stance which appears to be echoed in bankruptcy courts and trustee offices across the country.  Given this policy change, I'm of the belief that there is now the sort of serious legal impetus that would enable courts to dissolve troubled same sex unions of Kentuckians in terms of both property interests and the underlying legal status.  A number of family law attorneys are preparing litigation in order to address the significant issues arising from the breakup of these unions; it is important to retain someone familiar with the issues involved.

UPDATE:  AS OF FEBRUARY 2014, KENTUCKY MUST RECOGNIZE SAME SEX MARRIAGES PERFORMED IN OTHER STATES.  THIS PUTS SAME SEX MARRIAGES ON THE SAME PLAYING FIELD REGARDING EQUITY IN PROPERTY, RETIREMENT ACCOUNTS, DEBT DIVISION AND SPOUSAL MAINTENANCE.

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