Family Law Policy Change on Same Sex Marriages in KY

A major shift of family law policy in Kentucky regarding same sex marriages performed in other states has come about through a ruling from an unexpected source.  US District Judge John Heyburn has ruled that Kentucky is required to recognize same sex marriages and domestic partnerships performed in other states, regardless of language in its Constitution and statutes prohibiting recognition of those unions.

Kentucky Ban On Recognizing Out-Of-State Gay Marriages Struck Down By Federal Judge

Kentucky must recognize same-sex marriages performed in other states, according to a ruling Wednesday by a federal judge, who struck down part of the state ban that he wrote treated "gay and lesbian persons differently in a way that demeans them."

In 23-page a ruling issued Wednesday, U.S. District Judge John G. Heyburn II concluded that the government may define marriage and attach benefits to it, but cannot "impose a traditional or faith-based limitation" without a sufficient justification for it."

"Assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons," wrote Heyburn, an appointee of President George H.W. Bush.

I did not expect this ruling at this time, and felt that such a family law policy change would be about 4 years in the future.  What this ruling ultimately means (besides having some profound impact as regards health coverage, tax filings, the rules of evidence, end of life issues and retirement rights) is that the previous method of dissolving unsuccessful unions by obtaining a Declaration of Invalidity is now effectively over, at least in the Louisville Metro Area and some other cities in Kentucky (some rural circuits may be less likely to honor this order and may prefer to wait for a ruling on an appeal).  Providing that Judge Heyburn's order is not subject to a stay on appeal, we will now be able to file a less cumbersome action for the dissolution of marriage (a garden variety divorce).

The action for dissolution will be a double-edged sword.  While a dissolving same sex couple of means previously had to endure a cumbersome process of determining equity in the partnership on a transaction by transaction basis in a partition action, there was no effective division of debt, no meaningful division of retirement accounts and no spousal maintenance.  Now that these will be recognized, all the marriage rules come into play to divide marital assets, marital debts and retirement accounts.  More importantly, spousal maintenance will now be a factor, and may be ordered to be paid in certain high value cases.

As always, should you need services along these lines, we stand willing to help.

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