MARRIAGE EQUALITY IN NORTH CAROLINA: Same-Sex Couples? What do the Recent Supreme Court Decisions Mean for North Carolina Gay Marriage?

On October 6, 2014, the Supreme Court denied review of seven Federal Circuit Court rulings (from the Tenth, Seventh, and Fourth Circuits) that held state bans on same-sex marriage violated the U.S. Constitution. In denying review, the Supreme Court has effectively allowed those favorable rulings to stand. On October 7, 2014, the Ninth Circuit also ruled in favor of marriage equality. This means:

• Oklahoma, Utah, Virginia, Indiana, and Wisconsin will soon be added to the list of states allowing same-sex marriage.
• Marriage bans in the other states within those three Federal Circuits will also likely be invalidated upon challenge via stare decisis, including North Carolina, South Carolina, Wyoming, Colorado, Kansas, and West Virginia.
• Marriage bans in an additional five states in the Ninth Circuit may also be invalid soon.
  An additional 51 million Americans live in states where same-sex marriages are now, or will soon be, recognized and performed, making states supporting marriage equality the official majority of U.S. states (with 35 states plus the District of Columbia allowing same-sex marriage following the Court’s decision not to grant certiorari).

In North Carolina, the Federal District Court Judge in the Middle District presiding over the Fisher-Borne case, Judge Osteen, has ordered all parties to provide him with any additional information regarding their positions within 10 days. He has indicated that he will make a decision at that point and that likely his ruling will be finding consistent with both the 4th Circuit and the United States Supreme Court that North Carolina’s ban on same-sex marriage is unconstitutional.

What does this mean for North Carolina residents? The decision of the Fourth Circuit Federal Court of Appeals will stand and same sex marriages will be performed in and recognized in North Carolina as soon as the federal judges rule on the pending NC marriage equality cases.

Some basic answers to questions that you may be asking follow:

I WAS MARRIED IN A JURISDICTION THAT LEGALLY ALLOWED SAME-SEX MARRIAGE -WHAT SHOULD I KNOW ABOUT MY MARRIAGE WHEN MARRIAGE EQUALITY COMES TO NC?

1. You will be legally married in the State of North Carolina and afforded all of the rights and obligations of a legally married couple.

2. You will be legally married for all purposes under federal law.

3. You will need to file married state as well as federal tax returns.

4. If you are the non-legal parent of your children, you may and should obtain a step-parent adoption and become a legally recognized parent of your child(ren).

5. The question of how far back your marriage will be recognized will not be answered in advance. If other jurisdictions are any indication, your marriages will at least relate back to when your same sex marriage became legal in this state: either when the Fourth Circuit decision came down (July 28, 2014), or when the District Court decision is rendered. There is the possibility that your marriage will relate back to when it was validly performed in the jurisdiction in which you were married.

6. You may re-deed any property you own between you and your spouse so that it is owned as Tenants by the entireties – a right only afforded to legally married couples.

7. You may qualify for coverage of health insurance and other spousal benefits available through your spouse’s employer.
8. 
You may get divorced in North Carolina, and all of the rights and privileges as well as obligations of marriage, including, but not limited to spousal support, child support, child custody, child visitation/custodial access, equitable distribution, and fault based divorces are now available to you.

I AM NOT CURRENTLY MARRIED – WHAT SHOULD I KNOW ABOUT MARRIAGE?

1. You will be able to get married in North Carolina.

2. If you want to legally adopt children you have raised with a partner, you may do so via step-parent adoption if you first get married. 

3. If you get married, and then have children, your children should be the product of your marriage and you should both be named on the birth certificate as parents. However, being named on the birth certificate as parents is only a presumption of parenthood. A stepparent adoption may be necessary and advisable particularly in circumstances where there is a known biological donor (ie. Sperm donor).
4. Before rushing to get married, you should consult a family law attorney to discuss possible Premarital Agreements, Property Agreements, and/or Custody Agreements.