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February 8, 2017 Blog

Effects of Marriage Equality in Family Law

By: Jonathan Melton

Video: What Are The Rights Of Unmarried Same Sex Couples?

Marriage laws have rapidly changed in North Carolina and across the country. In May 2012, 21 percent of this state’s registered voters cast ballots in favor of a constitutional amendment banning same-sex unions. Fast-forward 18 months to October 2014 and a federal district court invalidated that amendment. And, on June 26, 2015, the U.S. Supreme Court made marriage equality the law in every state. But how do these changes affect our LGBT clients?

The biggest, and most obvious, effect of the recent Supreme Court ruling is that marriages of same-sex couples are valid across the country. In its ruling the Supreme Court addressed two key questions: (1) does the Constitution require a state to license a marriage between two people of the same sex; and (2) if same-sex couples marry in a state where gay marriage is legal must other states recognize their marriage? The court said, simply, yes.

Before the ruling, the marriages of same-sex couples wed in this state could be ignored by other states. Likewise, it was unclear whether this state would acknowledge the marriages of same-sex couples from other states. Now, all of those marriages are legal, no matter where they took place. That means same-sex couples may avail themselves of all the common family law claims – alimony, child support, child custody, equitable distribution and divorce.

Another large benefit to our LGBT clients is that they may now seek the protections of our domestic violence statute, N.C. Gen. Stat 50- B. That statute protects individuals engaged in a “personal relationship.” A personal relationship under the statute includes current or former spouses. Before the Supreme Court ruling, gay couples were not covered by the statute. The statute still does not yet protect two people of the same sex who are simply dating; the statute still limits dating relationship to members of the opposite sex.

The effect of the Supreme Court ruling on that part of the statute is yet to be seen, but the language of the Supreme Court’s opinion certainly lends weight to the notion that our domestic violence law is likely to change. The Supreme Court held that the right to marry is a fundamental right under the due process and equal protection clauses of the Fourteenth Amendment. Basically, gay couples may not be deprived of the same right afforded to straight couples. The Supreme Court’s decision to root the basis of marriage equality in the equal protection clause of the Fourteenth Amendment naturally gives rise to the argument that same-sex couples should not be treated differently under any laws of this state.

That same logic could also spell doom for the recently-enacted state law which allows magistrates to refuse to perform gay marriages, if the marriages violate his or her religious beliefs. The practical effect of that law could make it more difficult for same-sex couples to get married. While the Supreme Court’s ruling does not directly invalidate this law, the argument remains that if a gay couple is unable to find a magistrate to marry them, then the new law interferes with the couple’s constitutional rights. Supporters of the magistrate law might argue that it does not violate a same-sex couple’s equal protection rights, because that couple could drive to another town to find a magistrate willing to marry them. It is likely we should expect that debate, and many others, to play out over the next year.

It is probably too soon for domestic lawyers to realize the effects of the recent Supreme Court ruling. But regardless of your personal beliefs on the issue, one fact is clear: same-sex marriages will have a substantial impact on our practice.

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Jonathan Melton is a Board Certified Specialist in Family Law who joined Gailor Hunt Davis Taylor & Gibbs, P.L.L.C. in 2013. Prior to joining the firm, Jonathan served as a judicial law clerk for the Honorable Richard A. Elmore of the North Carolina Court of Appeals. Jonathan focuses a portion of his practice specifically on family law appeals. He has been selected as a North Carolina Rising Star by Thomson Reuters Super Lawyers and elected to Business North Carolina’s Legal Elite in the categories of Family Law and Best Under 40. If you have a question about this article, you can email Jonathan at
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