NC Same-Sex Marriage Legal FAQs

Now that same-sex couples have the freedom to marry in North Carolina and their marriages (no matter where performed) will be recognized by North Carolina and the federal government, Haas & Associates, P.A. has compiled a guide to answer some frequently asked questions about Marriage, Divorce and Parentage for same-sex spouses in North Carolina. Please note: This brief overview is not intended to provide individualized legal advice. For further information, contact Haas & Associates, P.A. by phone at 919-783-9669 or contact us.

Marriage

Q: If I am already married in another state, what do I have to do to be married in North Carolina?

Answer: Nothing. North Carolina now recognizes valid gay marriages from all other states. You do not need to remarry your spouse in North Carolina.

If I marry my partner, will he/she then be entitled to half my retirement if we get divorced?
Answer: All income earned during a marriage in NC is marital, and there is a presumption that all marital assets will be divided equally. This means that all funds that you deposit into your retirement account that are a result of your income from the date of marriage until the date of separation are marital assets, and your spouse could argue that she/he is entitled to half. You should see a qualified attorney about your particular situation.

Q: Can we still file our taxes as single even though we’re married now?

Answer: No. Married people may file as married filing jointly or married filing separately, but NOT single. Consult an accountant or tax advisor to determine the best options for you.

Q: What is the best way for my spouse and I to own property if we are married?

Answer: For most couples, it is best to own real estate at tenants by the entireties. But you should speak with an attorney about your specific situation before retitling any of your assets.

Q: Does being married now allow me to be on my spouse’s health insurance?

Answer: Yes, if your spouse’s employer offers health insurance benefits to different sex spouses, it should offer it to same-sex spouses (who meet all other criteria of the plan provider). Have your spouse contact his/her plan provider to get the details. Usually a marriage is a qualifying life event to allow for a new enrollment, HOWEVER, often you only have 30 days after your marriage to enroll your spouse in your plan without having to wait for open enrollment. So start the process as soon after your marriage as possible.

Q: Does being married make me a parent of my spouse’s biological child?

Answer: No. Gay marriage does not automatically make you a parent. However, by virtue of your marriage, you now qualify to petition for a stepparent adoption. Once your stepparent adoption has been completed, only then will you become a legal parent.

Q: I am in a domestic partnership in another state with my ex-partner. Can I marry my current partner in North Carolina?

Answer: No. You should contact an attorney in the state where you have your domestic partnership to find out how to dissolve that relationship prior to entering into a marriage in this or any other state.

Divorce

Q: I got married to my spouse in another state 5 years ago. We have wanted to get a divorce, but we couldn’t get one in the state where we married because someone had to live there. Can we get divorced in North Carolina?

Answer: Yes. You can now divorce in North Carolina so long as you meet the other requirements for divorce, which are:

• At least one of you has resided in NC for at least 6 months
• You have been separated (living at different addresses) for at least one year and one day
• At the time that you separated, at least one of you intended for the separation to be permanent, and
• You have not resumed your marital relations while separated.

NOTE – GETTING A DIVORCE WILL HAVE A SIGNIFICANT IMPACT ON YOUR PROPERTY AND ALIMONY RIGHTS. SEE AN ATTORNEY BEFORE YOU GET A DIVORCE TO ENSURE YOU ARE NOT FORFEITING ANYTHING YOU MAY BE ENTITLED TO RECEIVE.

Q: What happens to our property if we get divorced?

Answer: North Carolina marital dissolution laws will allow the courts to divide your property, or you can come to a settlement between yourselves. Divorce laws applying to gay marriages means there is a presumption that marital assets and debts should be divided equally, but this presumption can be overcome. See an attorney to understand the definition of “marital assets and debts.” They will likely surprise you.

Q: I am not the biological parent of our child. Will I still get to see my child if I divorce the biological parent?

Answer: This is a very complex question and the answer depends on many factors. It is important that you establish legal parentage, if possible, utilizing a stepparent adoption. Wake County will permit couples who are married, but separated, to still petition for a stepparent adoption. In general, however, custody of children is determined according to the standard of what is in the best interests of the child, and non-biological parents have been successful in North Carolina in obtaining custody rights to their children.

Q: If my spouse and I get divorced, will I have to pay him/her alimony?

Answer: It is possible, yes. If you fit the legal definition of a “supporting spouse” and your spouse fits the legal definition of a “dependent spouse,” it is possible that you could be ordered to pay alimony. If you and your partner don’t believe that either of you should ever have to pay alimony to the other, and you are not yet married, you should execute a prenuptial agreement which waives each of your respective rights to seek alimony in the event of a split.

Parentage

Q: My spouse and I have a child who is the biological child of my spouse and an anonymous donor. How do I become a parent?

Answer: You should pursue a stepparent adoption.

Q: Will doing a stepparent adoption get my name on my child’s birth certificate?

Answer: Yes, after the adoption is entered, you will receive an amended birth certificate that has the names of both parents.

Q: I got a second parent adoption for my child in North Carolina in 2009. Is that still valid?

Answer: Technically, the Court that invalidated second parent adoptions in 2010 only ruled on that one adoption that was before it at that time. BUT, if anyone were to ever challenge the validity of your adoption, the court would have to find that it is invalid.

Q: So if my second parent adoption isn’t guaranteed to be valid, what should I do now?

Answer: In gay marriages, if you are married to the biological/adoptive parent, you should do a stepparent adoption and indicate to the Clerk that you did a second parent adoption in the past, but believe it to be invalid. If you are not married, you may still be able to do a second-parent adoption in another state. Consult with one of our attorneys, to learn more. These can be complicated, so it’s best to hire an attorney to assist you.

Q: What is the difference between an adoption and getting custody?

Answer: An adoption makes a person a legal parent of a child. This creates a permanent parent-child relationship and vest numerous legal rights in both the parent and the child. It puts the adopting parent, for all intents and purposes, on exactly the same legal footing as the biological parent. Custody, or custodial rights, can be granted to parents, but also to non-parents (grandparents or other relatives often have custody of children for various reasons). Custody can mean you have a right to visit the child or to participate in certain decisions about the child, but having custodial rights to a child does not make you a legal parent. It will be unlikely that the child will qualify for certain government, legal, or military benefits or inheritance rights from you just because you have custodial rights. It is important that you understand this distinction, so see an attorney for additional information.

Q: My spouse and I want to adopt our foster child. Is this possible?

Answer: Yes. You and your spouse can jointly petition to adopt a child that is not biologically related to either of you. In fact, since you are now in a recognized marriage, your spouse must join in any petition to adopt.