A Look at Same Sex Marriage and Divorce

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A Look at How Legalizing Same-Sex Marriage has Resulted in Additional Benefits and Protections


2015 is a historic year for same-sex couples.  The U.S. Supreme Court made its final decision on June 26, 2015, in the landmark case titled Obergefell v. Hodges.  This case involved 2 main issues: whether the U.S. Constitution requires a state to issue a marriage license to 2 people of the same sex and whether a state is required to recognize a same-sex marriage that was performed out-of-state.  The Court ultimately decided that it is a fundamental right for same-sex couples to get and be married in all States in the U.S.  As a result, it necessarily followed that there is no lawful basis for a state to refuse to recognize a same-sex marriage legally performed in another state.
To truly understand how historic this ruling is for same-sex couples in Indiana, it is important to see how the laws regarding same-sex relationships have evolved in our state.  It wasn’t until 1977, less than 40 years ago, when Indiana finally decriminalized same-sex, sexual activity.  In 1986, marriage was then restricted by law in Indiana to only be legal between a male and a female.  Then about 10 years later, in the wake of some states and countries legalizing same-sex marriages, Indiana expanded its restrictions on same-sex marriages by declaring them void in Indiana even if the marriage was lawful in the place it occurred.  There were then attempts to amend the Indiana Constitution to define marriage as to be between only a man and a woman in 2004, 2011, and 2014, all of which were unsuccessful.  For example, in 2005, the Indiana Court of Appeals ruled in Morrison v. Sadler that Indiana’s statutory limitation of marriage to opposite-sex couples did not violate the Indiana Constitution and that the Defense of Marriage Act did not violate the Equal Privileges and Immunities Clause of the Indiana Constitution.  In making its finding, the Court noted that it failed to find there to be a fundamental ‘core value’ to marry someone of the same sex under the Indiana Constitution and also stated that Indiana had a right to treat opposite-sex couples differently because same-sex couples only procreate as part of a deliberative process.  It wasn’t until the U.S. Supreme Court’s ruling in Obergefell v. Hodges in 2015 that same-sex marriages were legalized in Indiana and all other U.S. States.
Now that the issue of same-sex marriage has finally been resolved in Indiana, there are several benefits to which same-sex couples are now entitled as a result.  Employment benefits are now recognized for same-sex couples.  This means that an employee in a same-sex marriage can carry his/her spouse under the company’s health insurance plan, along with being able to take advantage of all other benefits that were once only afforded to opposite-sex marriages.  Same-sex couples can now file State and Federal tax returns as married persons and so are able to take advantage of all benefits and tax breaks.  All the state and federal benefits, such as Social Security benefits, are available to same-sex couples as well.
There are also numerous protections that same-sex married couples now have under the law.  First, same-sex couples are able to seek a divorce in Indiana under the same laws that once applied only to opposite-sex marriages.  Indiana courts have the authority to determine the marital estate of a same-sex couple and to divide the assets and debts of the marriage amongst the parties.  This power now allows a party from a same-sex marriage to have a claim to certain assets or debts in a divorce to which he/she once did not have a claim.  For example, before the legalization of same-sex marriages, if a same-sex couple bought a house together during their relationship, but the house was only titled in one of the persons’ names, the party whose name was not on the title would not have a claim to the house under law if the parties were to end their relationship.  Now that same-sex couples can marry, all assets and debts, regardless of whether they are titled in one party’s name or the other, are all considered to be part of the marital estate in a divorce and are eligible for division by the courts.  Parties to a same-sex divorce can now seek spousal maintenance if he/she is eligible under Indiana law.  Prior to the 2015 ruling, neither party in a same-sex relationship could seek such an award from the other because such a legal claim only arises out of a divorce in Indiana.  Lastly, children of a same-sex marriages, whether by adoption or born to the couple by artificial insemination or surrogacy, are treated no differently than children born to an opposite-sex marriage.  As such, a same-sex couple, whether married or not, can use the courts to determine an appropriate custody, parenting time, and child support award under Indiana law for the couple’s minor children.
Secondly, same-sex couples now have the ability to file bankruptcy in Indiana.  This can provide potential added benefits to a person in a same-sex marriage that he/she did not have previously.  Being able to claim a same-sex spouse in a bankruptcy can affect a person’s ability to file under different chapters of the bankruptcy code.  For example, one general requirement for being eligible to file a Chapter 7 bankruptcy is that the party must be below the median family income.  The median family income increases for each member and dependent in the filer’s household and, by being able to claim a same-sex spouse as a member of the household, the filer can have a slightly larger income and still be eligible to file a Chapter 7 bankruptcy that he/she may not have been able to file without claiming the same-sex spouse.  Further, same-sex couples filing a joint bankruptcy can take advantage of having double the exemptions available to them.  A party filing a bankruptcy is afforded some exemptions under law allowing him/her to be able to keep a certain amount of tangible and intangible personal property, along with a certain amount of equity in real estate, which the creditors cannot intercept in the bankruptcy proceedings.  By filing with a spouse, the parties are then afforded double those exemption amounts and so are able to retain more property once the bankruptcy is completed as compared to a single filer.
Lastly, same-sex couples are provided with the protections under the intestate laws that only opposite-sex couples once had.  Intestate laws govern how a deceased person’s estate is to be distributed and divided when a person dies who didn’t have a legally enforceable Will.  Prior to Indiana recognizing same-sex marriages, a person who was in a relationship with another same-sex person could only receive a portion of the deceased person’s estate if it was bequeathed to him/her under a Will.  Intestate laws generally only award portions of a person’s estate to a spouse, dependents such as children or grandchildren, or other blood-relatives of the deceased.  Since Indiana didn’t recognize same-sex marriages, the surviving partner of the deceased would then have no claim to the estate under the intestate laws.  Same-sex married couples are now afforded these protections.  However, it should be noted that, although the intestate protections are now in place, it is still important to have a current Will in place to ensure that your estate is distributed according to your wishes.
If you are thinking about a divorce, child custody, or support case, the attorneys at Banks & Brower, LLC can help you.  Give us a call at (317) 870-0019, or email us at info@banksbrower.com.  We are available to take your call 24/7/365.