Indiana Child Custody, Other Issues a Challenge For Same-Sex Splits

Child custody cases in Indiana can be contentious no matter what the make-up of the family.However, Indiana child custody attorneys realize that there are unique challenges for families headed by a same-sex couple.

Indiana is not among those states that has approved same-sex marriage, and it is not allowed under federal law according to the Defense of Marriage Act, also known as DOMA. However, a federal appeals ruling last week in Massachusetts (Commonwealth of Massachusetts v. United States Department of Health and Human Services, et. al.) has struck down a key portion of DOMA, saying that for the federal government to deny legally married, same-sex couples health benefits is unconstitutional.

Now, this doesn’t directly affect Indiana – yet. That’s because gay marriage is not legal here anyway. But this ruling could have sweeping implications when the case reaches the U.S. Supreme Court, which is likely to happen, although it’s not clear exactly when.

In the meantime, same-sex couples in Indiana still struggle with how to legally sort through issues of domestic partnerships, child custody and other matters. While some straight couples choose prenuptial agreements prior to marriage, the fact that same-sex couples don’t have the option of getting married in Indiana means they need to seek out a family law attorney who can help ensure their interests are protected – particularly with regard to the children.

Otherwise, what ends up happening is that if the union ends, the one biological parent may get sole legal custody of the child, while the other parent may have no legal rights.

In states where gay couples are allowed to marry, the costs for just about everything family-law related is higher. Consider divorce, for example. Let’s say a legally married gay couple splits. The family court judge orders one spouse to pay spousal support. However, because the union was never recognized by the federal government, that support can not be deducted from federal taxes, as it could be if the two people were of the opposite sex. That could end up costing thousands more dollars in the long run.

Also, same sex couples end up requiring more estate planning. Take for example a same-sex couple who had been married in California, but then moved to Fort Wayne to look after a parent. The pair were able to purchase their home outright, but the state comes down hard on so-called unrelated heirs. This wouldn’t be an issue if the couple were straight, but because Indiana doesn’t recognize the marriage as legal, the pair have had to purchase expensive life insurance to cover the taxes on the house, so that when one passes away, the other will be able to keep the home.

That law in Indiana is thankfully being phased out, but according to federal law, many same-sex couples are still penalized with heavy taxes when they inherit property from their spouse.

End-of-life decisions are also a challenge, as certain states do not recognize a same-sex husband or wife’s right to make decisions for their incapacitated spouse – a right automatically granted to straight married couples. The only way to spell it out is to establish healthcare and financial proxies, wills and powers of attorney.

Indiana Family Law Attorney Burton A. Padove handles child custody and divorce matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources:
In U.S., same-sex couples face financial tangles, By Temma Ehrenfeld, Reuters

More Blog Entries:
Indiana Child Custody Attorneys Encourage Regular Evaluation of Custody Plans, May 24, 2012, Indiana Child Custody Attorneys