Unmarried and same sex partners

A guide to Arizona legal issues

One of the most overlooked but growing areas of Arizona family law is same-sex and unmarried partners’ legal issues. People who choose not to marry, have not yet married, or are unable to marry seem to get lost in the shuffle. So do unmarried same-sex couples. But their family law issues are no less real or important than those of married people.

With over half of marriages ending in divorce, some people feel that marriage is overrated. But if you do not go that route, you do not have the protections of Arizona’s marriage statutes. And you need to know how to divide assets and debts if things go astray. Or who will be awarded primary custody of the children. Or who gets to keep the pets. Or what will happen to the house you bought together.

The legal implications of being unmarried

Being unmarried and having family difficulties complicates matters in ways you might not think of until you are in the midst of trouble. You do not have the benefit of a marriage certificate to help you assert your rights. You might have the benefit of an unmarried partnership agreement, domestic partnership agreement, or the like, but unfortunately use of these is still extremely rare.

Moreover, by the mere fact that you are unmarried, if any children are involved and you break up, you have to establish paternity with a court of law. That may sound crazy, but unless the parents were married at the time of the child’s birth, or 10 months either way, paternity is not presumed to attach to the mom’s husband.

A man can voluntarily agree that he is a child’s father by signing an acknowledgment-of-paternity document at the hospital when the baby is born or at some later point, thereby being included on the birth certificate. But if he refuses or there is a question, then you will have to convince a judge to order DNA testing to determine who the biological father truly is.

Once paternity is established, the rest of the steps can go forward relatively quickly and smoothly, including establishment of child custody, parenting time, legal decision-making, and child support.

Same sex issues

Unfortunately for same-sex couples, one of the biggest gaping holes in state law is what to do about children. This includes child custody (now called legal decision making and parenting time in Arizona) and adoption.

Sometimes there are children from a prior heterosexual relationship that one of the parties brings to the marriage. Sometimes the couple decides to have their own child or children, which obviously requires the employment of some kind of informal creative reproduction (colloquially called the “turkey baster” method) or the more formal assisted reproductive technology (ART). This is done with the help of donor sperm if the couple is female or donor egg and surrogacy if the couple is male. Sometimes couples adopt. Unfortunately, in Arizona at least, unmarried couples of either sexual orientation are not permitted to adopt together, only as individuals. Even married same-sex couples are still experiencing prejudice at the hands of adoption agencies.

Although there is a marital presumption, a non-biological parent is not automatically awarded the status of a legal parent merely by being married at the time of the birth. Unfortunately, Arizona does not currently have a provision for adding a second “mother” or second “father” to a child’s birth certificate, which can be important for some legal purposes as well as genealogy or simply personal satisfaction. The couple also would have no rights regarding caring for the child or children should the other parent die or otherwise be incapacitated. However, now that same sex marriage is recognized in Arizona, a step-parent adoption proceeding is an option to address this problem.

Needless to say, if you face an unmarried or same sex legal issue in Arizona, you need an experienced family law attorney to guide you through the evolving complexities.