Same-Sex Marriages, Paternity and Blended Families

No two clients are ever the same, and as matrimonial attorneys, our primary goal is to get to know each client and his or her needs so that we can provide the best possible legal service and outcome. To do so, we need to know what our client's families look like ' their exact makeup, their needs, and their ultimate desires. This article discusses the current trends in family structure, and provides insight into ever-changing considerations.

When we used to imagine a family, we pictured the prototypical nuclear unit: a working husband, a stay-at-home wife, children, and a white picket fence. But society has evolved, and the concept of a “family” is much more expansive today. Understanding how the family has evolved and what today's family looks like will help us to better represent our clients.

No More Stereotypes

Consider, for example, the following changes to the family: The number of children born out of wedlock has quadrupled since 1970 to 41%, and cohabitating couples have increased from 2.9 million in 1996 to 7.8 million in 2012; more than one-fourth of unwed mothers are living with a partner who may or may not be their child's biological father; the number of women who are their family's sole financial provider has gone up from 11% in 1960 to 40% today; and the number of mothers who are employed has quadrupled since the 1950s. Furthermore, 70% of adults under the age of 30 view the ideal marriage as a partnership where both parties work and share in child-rearing and household maintenance. There has also been a rise in same-sex parenthood. There are estimates that over 100,000 same-sex couples are raising children today, and one fifth of same-sex couple households include minor children. Moreover, as a result of the marriage equality movement, at this writing, 19 states have legalized same-sex marriage.

As these statistics demonstrate, the concept of the family has changed; it is still evolving, and will continue to evolve. Understanding what a family looks like today and may look like tomorrow will greatly benefit our practice of law because it affects who we view as clients, how we interact with clients, and our understanding of the issues that arise for our clients.

Consider divorce and paternity actions. As the family continues to evolve, the way attorneys think about divorce and paternity actions must evolve with it. The parties that now seek divorces are more diverse. Some are experiencing their very first divorce, while others may be experiencing their second or third divorce. The stigma that was once associated with divorce is less prevalent today. Additionally, out-of-wedlock child-bearing is much more common today, as stated above, and has led to an increase in paternity actions.

Undoubtedly, the family has become more diverse, multifaceted, and dynamic. A 2013 statistical study of the family in the United States by the National Center for Family & Marriage Research at Bowling Green State University reported the following changes to the family unit: in 2013, 62% of children lived with two biological parents and of the 62% of children, 95% of them lived with two biological parents who were married; 24% of children lived in single-parent families, with a majority of the children residing with a single mother; 7% of children lived in a cohabitating family with less than half of the children living with two biological parents; and of the children living in cohabitating families with one biological parent and a co-habituating stepparent, 5% lived with a parent who was in a co-residential same-sex relationship. Krista K. Payne, Children's Family Structure, 2013, National Center for Family & Marriage Research, Bowling Green State University, 2013.

As these numbers show, many people are having children out of wedlock, as the result of multiple unions, or cohabitating relationships. It is undeniable that over time, families have become much more multifaceted with step-parents/siblings and half-siblings. Where children are involved, it appears that divorce no longer marks the end of a family; rather, it simply changes the family dynamic.

Impact on Family Law

As the concept of a family evolves, so must our legal practice techniques. It is unrealistic to think that we can practice family law the same way we did 50 years ago, or even five years ago. We need to tailor our practice to the varying needs of our clients. We need to be open-minded and cognizant about what will work and what will not work for a particular family. A cookie-cutter approach to family law will not work. For example, parenting plans and alimony awards will look different as families continue to change. As noted above, 70% of people under the age of 30 now view marriage as a partnership where both parties work, participate in child rearing, and divide household maintenance. With both parents participating in all aspects of life, parenting plans and time-sharing schedules need to accommodate these families. Alimony awards may even become obsolete.

Recognizing these trends requires practitioners to be creative and to think outside the box when helping families come up with solutions to financial and parenting issues. Family lawyers must consider each family and its unique needs in order to represent their clients successfully.

We also may need to be conscious of the vocabulary, forms, and procedures we employ in family law matters. Where attorneys might not have thought twice about using such terminology as “husband” and “wife” and “mother” and “father,” it may no longer be appropriate in some instances. For example, the law with regard to same-sex marriage has changed drastically in many states. In 2003, Massachusetts became the very first state to legalize same-sex marriage. Goodridge v. Mass. Department of Public Health, 440 Mass. 309, 344 (Mass. 2003). And that was only the beginning. With the legalization of same-sex marriage in 19 states so far, same-sex divorce is now a matter within the realm of family law.

Furthermore, the federal law has also changed with regard to same-sex marriage. In the monumental decision of United States v. Windsor , the Supreme Court struck down the Federal Defense of Marriage Act, finding that it deprived same-sex couples of liberty protected by the Fifth Amendment. See United States v. Windsor, 133 U.S. 2675(2013). See also Gulino, Frank: The March Toward Marriage Equality in a Post- Windsor Nation, Part Two, The Matrimonial Strategist, June 2014, available at http://20bit.ly/1i27wkQ.

Regardless of one's belief system, it is important to recognize that the changes occurring in the law with regard to same-sex marriage will have an impact on family law. Take, for example, a same-sex couple who married in one of the 19 states that legalized same-sex marriage as of press time. What happens if this couple moves to a state that does not recognize same-sex marriage and wants to get a divorce? Or, what if the same-sex couple wants to get divorced in a state that recognizes same-sex marriage? These are questions that may arise as a result of the changes to the family structure and the law.

Conclusion

Finally, as attorneys, we must push ourselves to be aware of the social world around us, broaden our minds, and be open to creative solutions. We must separate how we view our own family, and any ideologies we possess concerning what a family looks like, and open our eyes to the diverse families that exist today. While it is challenging ' and often impossible or impractical ' now more than ever, it is important to try to do so. We must remember that what works for one family, may not work for another, and what seemed unconventional in the past may be the perfect solution in the future. All kinds of families face struggles and it is our job, when feasible, to provide families with the legal guidance to help them smoothly transition from one phase to the next.

The intent of this article is not to advocate for one position over another regarding same-sex marriage, or to state that one type of family is better than another. Rather, the intent of this article is to focus on the changes in the family. The concept of family has changed significantly over time and will continue to do so. At the core of the practice of family law is the family unit. Regardless of one's beliefs, the way that unit is changing will affect the way family law is practiced across the nation.

Rebecca Palmer, a member of this newsletter's Board of Editors, leads the Family & Marital Law Group at Lowndes, Drosdick, Doster, Kantor & Reed, P.A. She has a broad background in providing alternative dispute resolution, general litigation, and collaborative law issues for domestic disputes for over twenty years. Derren Ciaglia is an associate in the Family and Marital Law Group at the firm.

No two clients are ever the same, and as matrimonial attorneys, our primary goal is to get to know each client and his or her needs so that we can provide the best possible legal service and outcome. To do so, we need to know what our client's families look like ' their exact makeup, their needs, and their ultimate desires. This article discusses the current trends in family structure, and provides insight into ever-changing considerations.

When we used to imagine a family, we pictured the prototypical nuclear unit: a working husband, a stay-at-home wife, children, and a white picket fence. But society has evolved, and the concept of a “family” is much more expansive today. Understanding how the family has evolved and what today's family looks like will help us to better represent our clients.

No More Stereotypes

Consider, for example, the following changes to the family: The number of children born out of wedlock has quadrupled since 1970 to 41%, and cohabitating couples have increased from 2.9 million in 1996 to 7.8 million in 2012; more than one-fourth of unwed mothers are living with a partner who may or may not be their child's biological father; the number of women who are their family's sole financial provider has gone up from 11% in 1960 to 40% today; and the number of mothers who are employed has quadrupled since the 1950s. Furthermore, 70% of adults under the age of 30 view the ideal marriage as a partnership where both parties work and share in child-rearing and household maintenance. There has also been a rise in same-sex parenthood. There are estimates that over 100,000 same-sex couples are raising children today, and one fifth of same-sex couple households include minor children. Moreover, as a result of the marriage equality movement, at this writing, 19 states have legalized same-sex marriage.

As these statistics demonstrate, the concept of the family has changed; it is still evolving, and will continue to evolve. Understanding what a family looks like today and may look like tomorrow will greatly benefit our practice of law because it affects who we view as clients, how we interact with clients, and our understanding of the issues that arise for our clients.

Consider divorce and paternity actions. As the family continues to evolve, the way attorneys think about divorce and paternity actions must evolve with it. The parties that now seek divorces are more diverse. Some are experiencing their very first divorce, while others may be experiencing their second or third divorce. The stigma that was once associated with divorce is less prevalent today. Additionally, out-of-wedlock child-bearing is much more common today, as stated above, and has led to an increase in paternity actions.

Undoubtedly, the family has become more diverse, multifaceted, and dynamic. A 2013 statistical study of the family in the United States by the National Center for Family & Marriage Research at Bowling Green State University reported the following changes to the family unit: in 2013, 62% of children lived with two biological parents and of the 62% of children, 95% of them lived with two biological parents who were married; 24% of children lived in single-parent families, with a majority of the children residing with a single mother; 7% of children lived in a cohabitating family with less than half of the children living with two biological parents; and of the children living in cohabitating families with one biological parent and a co-habituating stepparent, 5% lived with a parent who was in a co-residential same-sex relationship. Krista K. Payne, Children's Family Structure, 2013, National Center for Family & Marriage Research, Bowling Green State University, 2013.

As these numbers show, many people are having children out of wedlock, as the result of multiple unions, or cohabitating relationships. It is undeniable that over time, families have become much more multifaceted with step-parents/siblings and half-siblings. Where children are involved, it appears that divorce no longer marks the end of a family; rather, it simply changes the family dynamic.

Impact on Family Law

As the concept of a family evolves, so must our legal practice techniques. It is unrealistic to think that we can practice family law the same way we did 50 years ago, or even five years ago. We need to tailor our practice to the varying needs of our clients. We need to be open-minded and cognizant about what will work and what will not work for a particular family. A cookie-cutter approach to family law will not work. For example, parenting plans and alimony awards will look different as families continue to change. As noted above, 70% of people under the age of 30 now view marriage as a partnership where both parties work, participate in child rearing, and divide household maintenance. With both parents participating in all aspects of life, parenting plans and time-sharing schedules need to accommodate these families. Alimony awards may even become obsolete.

Recognizing these trends requires practitioners to be creative and to think outside the box when helping families come up with solutions to financial and parenting issues. Family lawyers must consider each family and its unique needs in order to represent their clients successfully.

We also may need to be conscious of the vocabulary, forms, and procedures we employ in family law matters. Where attorneys might not have thought twice about using such terminology as “husband” and “wife” and “mother” and “father,” it may no longer be appropriate in some instances. For example, the law with regard to same-sex marriage has changed drastically in many states. In 2003, Massachusetts became the very first state to legalize same-sex marriage. Goodridge v. Mass. Department of Public Health , 440 Mass. 309, 344 (Mass. 2003). And that was only the beginning. With the legalization of same-sex marriage in 19 states so far, same-sex divorce is now a matter within the realm of family law.

Furthermore, the federal law has also changed with regard to same-sex marriage. In the monumental decision of United States v. Windsor , the Supreme Court struck down the Federal Defense of Marriage Act, finding that it deprived same-sex couples of liberty protected by the Fifth Amendment. See United States v. Windsor , 133 U.S. 2675(2013). See also Gulino, Frank: The March Toward Marriage Equality in a Post- Windsor Nation, Part Two, The Matrimonial Strategist, June 2014, available at http://20bit.ly/1i27wkQ.

Regardless of one's belief system, it is important to recognize that the changes occurring in the law with regard to same-sex marriage will have an impact on family law. Take, for example, a same-sex couple who married in one of the 19 states that legalized same-sex marriage as of press time. What happens if this couple moves to a state that does not recognize same-sex marriage and wants to get a divorce? Or, what if the same-sex couple wants to get divorced in a state that recognizes same-sex marriage? These are questions that may arise as a result of the changes to the family structure and the law.

Conclusion

Finally, as attorneys, we must push ourselves to be aware of the social world around us, broaden our minds, and be open to creative solutions. We must separate how we view our own family, and any ideologies we possess concerning what a family looks like, and open our eyes to the diverse families that exist today. While it is challenging ' and often impossible or impractical ' now more than ever, it is important to try to do so. We must remember that what works for one family, may not work for another, and what seemed unconventional in the past may be the perfect solution in the future. All kinds of families face struggles and it is our job, when feasible, to provide families with the legal guidance to help them smoothly transition from one phase to the next.

The intent of this article is not to advocate for one position over another regarding same-sex marriage, or to state that one type of family is better than another. Rather, the intent of this article is to focus on the changes in the family. The concept of family has changed significantly over time and will continue to do so. At the core of the practice of family law is the family unit. Regardless of one's beliefs, the way that unit is changing will affect the way family law is practiced across the nation.

Rebecca Palmer, a member of this newsletter's Board of Editors, leads the Family & Marital Law Group at Lowndes, Drosdick, Doster, Kantor & Reed, P.A. She has a broad background in providing alternative dispute resolution, general litigation, and collaborative law issues for domestic disputes for over twenty years. Derren Ciaglia is an associate in the Family and Marital Law Group at the firm.