LGBTQ Family Law Guide

Introduction

This guide covers many family law topics with information specific to LGBTQ people and families. We also link to other helpful resources.

Contents

  1. Marriage, Domestic Partnerships, and Civil Unions
  2. Divorce, Parentage, Property, and Spousal Support
  3. Second Parent Adoption

 

What’s the difference between marriage and domestic partnership in Maine?

Maine started recognizing domestic partnership on July 30th, 2004. Now, people who want to have their relationship legally recognized can choose a domestic partnership or a marriage.

What is a domestic partnership?

A domestic partnership is an agreement between two unmarried adults. It is an agreement to live together, and to be responsible for each other.

There are two kinds of domestic partnership in Maine:

  • Registered Domestic Partnership
  • Unregistered Domestic Partnership

An unregistered domestic partnership doesn’t have the same benefits as a registered partnership. This guide will focus on the benefits of registered domestic partnerships.

What about civil unions?

If you have a civil union and want to know what effect this will have in Maine, you should talk with a lawyer if you can. If there is a question about the date of your marriage because of a civil union, you should definitely try to talk with a lawyer.

Most states where civil unions were recognized have passed laws that automatically turn civil unions from those states into marriages. In other words, if you have a civil union in one of these states, it may have been automatically changed to a marriage. States that have these laws are:

  • New Hampshire
  • Vermont
  • Rhode Island
  • Connecticut
  • Delaware

You should check with those states for details about these laws.

Other states still recognize civil unions, and don't have laws to change civil unions into marriages. These states are:

  • Colorado
  • Illinois
  • New Jersey
  • Hawaii

If you have a civil union from one of these states, you should talk with a lawyer about how that union will be treated by the State of Maine.

What are the benefits of a domestic partnership in Maine?

There are seven legal protections for registered domestic partners in Maine:

  1. The right to inherit your partner’s property.
  2. The right to make funeral and burial arrangements for your partner.
  3. The right to be guardian or conservator of your partner’s property if they are incapacitated.
  4. The right to visit your partner in the hospital.
  5. The right for you and your children to get health insurance through your partner’s job if they offer a domestic partner insurance policy.
  6. The right to take up to ten weeks of unpaid leave to care for your partner or their children if they are seriously ill or dying.
  7. The right to submit your partner’s absentee ballot.

Who can become registered domestic partners?

Two people can become domestic partners if they:

  1. Are adults (18 or older)
  2. Are mentally able to make this decision
  3. Aren’t closely related to each other
  4. Have been living together in Maine for at least 12 months; and
  5. Aren’t already married, in a civil union, or in a registered domestic partnership.

How do I register my domestic partnership?

Visit the Maine Domestic Partner Registry. You’ll need to fill out the form and have it notarized (sign it in front of a notary public). Then submit your form and the $50 processing fee to the Maine Office of Vital Records.

If you can't afford the fee, you may be able to have your fee waived. You should include a letter with your application explaining why you can't afford the fee. You can include information about your sources of income, dependents, and debts that you have. You should also mention if you are a person with a disability or if you get any public benefits. It is possible that the Office of Vital Records won't waive this fee, even if you can't afford it.

You can send in this form to:
Vital Records
11 State House Station
220 Capitol Street
Augusta, ME 04333-0011

What are some benefits of marriage that a domestic partnership doesn't have?

  1. Marriage is recognized in every state. It is also usually recognized in other countries. Your domestic partnership may not be recognized in another state or country.
  2. Domestic partnership doesn't have all the same benefits as marriage in Maine. These may include:
    • Employment-related marital benefits (like health insurance);
    • Some federal government benefits, like tax breaks. But you may be able to get Social Security benefits as a domestic partner. See the GLAD website for more information about Federal benefits like this.
  3. In most cases the law doesn’t recognize domestic partnership as equal to marriage. For example, if you end your domestic partnership you won’t be able to get spousal support or other financial benefits you might get through a divorce.

What are some benefits of domestic partnership that marriage doesn't have?

  1. Domestic partnerships are easier to get and easier to end. Depending on your situation, you may want the benefits of a domestic partnership without all of the benefits and limitations of marriage.
  2. In some situations, being in a registered domestic partnership may let you still be eligible for some public benefits but still give you legal protections. For example, your domestic partner may not be counted as part of your household for TANF eligibility.

How do I end a registered domestic partnership?

There are three ways to end your domestic partnership:

  1. Your domestic partnership will automatically end if either partner gets married.
  2. You and your partner can agree to end the partnership.
    • To do this, fill out this form: Form V71.
    • You'll both need to sign it in front of a notary public, and send it to the address on the form.
    • There is a $50.00 fee to do this. If you can't afford the fee, you may be able to have your fee waived. You should include a letter with your application explaining why you can't afford the fee. You can include information about your sources of income, dependents, and debts that you have. You should also mention if you are a person with a disability or if receiving any public benefits. It is possible that the Office of Vital Records won't waive this fee, even if you can't afford it.
  3. One partner can file to end the partnership.
    • First, complete Form V72.
    • Then photocopy the first page of that form and serve the other partner with this copy. You can serve the other partner by delivering the copy to them, or a person living with them in person. If you have tried to do this a few times and it hasn’t worked, you can serve them by mail. There are instructions about this, and other kinds of "service" on the form itself
    • If you still can't serve the other partner, you may be able to serve them by having a notice published in a newspaper, or some other way. If it gets to this, you may want to get help from a lawyer.
    • Once you have served your partner, you will file the original three-page form with the Maine Office of Vital Records, at the address on the form.

You can learn more about this process on the State of Maine website.

 

Same-Sex Divorce:  Potential issues with parentage, spousal support, and marital property due to marriage date

Parentage

You and/or your spouse may have parented children who are not your biological or adopted children during your relationship. You don't need to be married to ask the court to decide if you are a parent, or to decide on parental rights and responsibilities. On July 1, 2016, the Maine Parentage Act made the definition of a parent much broader. Read about the Maine Parentage Act.

Marital Property

When you are getting divorced, the Court has the power to fairly divide up the property from the marriage. "Marital property" is property (land, homes, cars, appliances, etc.) that either of you got during your marriage. Even if something is only in one of your names, it is still "marital property" if you got it while you were married.

Usually property you got before you were married, and gifts made just to you during the marriage aren't marital property. You can each claim your own "non-marital" property.

The divorce order must include how all of your “marital property” is going to be divided.

You may have committed to each other privately or through a domestic partnership or civil union before same-sex marriage was legal and then married later. One or both of you may want some of your non-marital property to be considered marital because of your earlier commitment. If this is an issue in your divorce or if you have pensions, retirement plans, or other property issues, try to get a lawyer.

Spousal Support

When you are getting divorced, the Court may also order one spouse to pay the other spousal support. One main factor the Court considers in deciding whether a spouse should pay spousal support is the length of your marriage.

You may have committed to each other privately or through a domestic partnership or civil union before same-sex marriage was legal and then married later. One or both of you may want the Court to consider the date of your marriage as earlier than the date you were legally married. If this is an issue in your divorce, try to get a lawyer.

For more detailed information about divorce with children, or divorce without children, visit our interactive classrooms.

 

Second Parent Adoption

When you marry or enter a partnership, you also gain a relationship with your partner or spouse’s children. But you are not automatically a parent of these children. The Maine Parentage Act expanded the definition of parent, so that a wider range of parents are recognized. For example, a person who has acted as a parent for a long period of time, or intended parents using an egg or sperm donor, can be considered parents. This could protect you if you separate from your partner or spouse and want to continue a relationship with a child that is not your biological child. The safest way to protect your relationship with that child is to adopt them.

An adoption decree is a legal document that creates a parent-child relationship. Adoption has many benefits, like:

  • Making both parents responsible for supporting the child.
  • Allowing the child to get benefits from a parent’s Social Security, worker’s compensation, or wrongful death.
  • Making the child eligible for health insurance through their parent’s work.
  • Allowing a parent to make medical and school-based decisions for their child.

An adopted child has all the rights that a biological child does.

 

I want a second parent adoption. What should I do?

In Maine, unless there is a case about the child going on in District Court, you file for adoption in the Probate Court. Each county has its own Probate Court. Find your local Probate Court.

You should go to the Probate Court and ask for these forms (#1-7). You might also need to go to the District Court to ask for #8 and #9, if they apply to your case.

  1. Form A-1: Petition for Adoption and Change of Name.
  2. Child’s Birth Certificate. If you don't have the original, you can get a certified copy from Vital Records. (If you can't afford the fee, you may be able to have your fee waived. You should include a letter with your application explaining why you can't afford the fee. You can include information about your income, dependents, and debts. You should also mention if you are a person with a disability or if you get any public benefits. It is possible that the Office of Vital Records won't waive this fee, even if you can't afford it.
  3. Form A-4: Consent of Petitioning or Non-Petitioning Parent
  4. Form A-7: Child Custody Affidavit
  5. Form A-8: Confidential Statement To Accompany Petition for Adoption
  6. Form A- 22: Acknowledgment Adoption Registry
  7. VS9-R: State of Maine Certificate of Adoption
  8. Any divorce decrees if the legal parent is divorced
  9. Copies of any court orders that affected the custody of the child (Judgment of Parental Rights and Responsibilities, Adoption Decrees, Guardianship Orders, etc.)
  10. Depending on your situation, there may be other forms you need to file.

You should use the court’s forms for this process. You can change them to say “Adopting Parent” instead of “Mother/Father.”

What goes in the petition?

You will need:

  1. Basic information (name, date of birth, address, etc.) of the people filing for adoption and the child;
  2. Information about the child (birth name, other names, proposed new name);
  3. Information about the legal custody of the child;
  4. Names and addresses of all persons “that affect the custody, visitation or access to the adoptee (the child)”;
  5. The relationship of the person filing the petition to the child;

The current legal parent and the parent that wants to adopt should file for the adoption together. This is called “petitioning.” You will be called “joint petitioners.”

When there is more than one child, you will need to file for adoption of each child. These petitions can be consolidated (the court will hear them at the same time).

How much will it cost?

Each petition costs $65, and each child needs a separate petition. If you can't afford this fee, you can apply for a fee waiver. A finger print check (for the adopting parent) is $49. In York County, there is also a $10 fee.

If a Probate Court requires publication of a legal notice of the adoption to a specific person involved in the custody of the child, the cost could be $200 - $1,500, depending on the newspaper(s).

If a Probate Court requires a home study, (more on this below), fees will run from $1,200-$2,100. Home studies aren't usually done in second parent adoptions. If the judge wants to order one in your case and you can't afford it, you should tell the judge.  They may be able to find a low-cost or free alternative.

You can ask the court to not do a home study in your case. This is called a "waiver." To do this, you need to file a motion asking the judge to waive the home study. Here’s a sample motion.

What county do we file in?

File in the county where the child lives or where the adoptive parent lives.

What will the child have to do?

If your child is 12 or older, the judge may talk with them about how they feel about the adoption. If the child is 14 or older, they have to sign a form agreeing to the adoption (Consent to Adoption - Form A- 6).

If the child has another parent besides my partner or spouse, do they need to agree to the adoption?

Yes. The law requires each of the child’s living parents to agree to the adoption. To do this, any biological or adoptive parent must sign Form A-4 in front of a Probate Judge and any de facto parent must sign Form A-5 in front of a Probate Judge.

Where there is a known sperm or egg donor, that person may sign Form A-14 in front of a notary public and give up the right to know about the court case. In cases involving unknown sperm or egg donors, the doctor or sperm/egg bank can certify that the person filing the petition got the sperm/egg from a confidential source.

If a person who is a parent or is presumed to be a parent does not wish to give up their rights, then the only way to adopt the child is if that parent’s rights are terminated in a separate court proceeding discussed here.

Do we need to have a home study?

Not usually. Home studies are meant for a situation when a child is leaving one family and being adopted into another. The home study makes sure that the home is right for the child. Home studies aren’t usually ordered in cases involving step-parent or second parent adoptions because the child isn’t leaving their home.

In many cases, the “new” parent is not a new partner, but someone who has already been parenting the child for some time. A lawyer can help prepare a document explaining your situation and make a motion to waive the home study.

If you can’t afford a lawyer, you can write a letter to the court explaining your family’s situation (for example, how long the child has lived with you, how long you and your partner have been together, etc.) and ask the court to waive the home study. Here’s a sample motion.

What happens if the court orders a home study?

If the court orders a home study, you should tell the agency or social worker doing the study that the child and parents are already a family.

In some cases, the home study includes more than one visit to your home by a trained social worker from a licensed adoption agency or the Maine Department of Health and Human Services (DHHS). You and your child(ren) will also be interviewed. These are some of the things the social worker usually reports on:

  1. Why you want to be adopt;
  2. A physical description of your home, play areas and safety features;
  3. Background checks on the adopting parent(s);
  4. The adoptive parents’ life experiences, family background, education;
  5. Employment, relationship status and issues, and parenting experience;
  6. Your current relationship and support systems, including how you communicate in your relationship and how you make parenting and financial decisions;
  7. Your relationships with other children;
  8. Your family’s beliefs, values and practices; and
  9. Your schedule and child care plans.

They will also interview others close to your family. These are usually just references where people say supportive things about your family and the adoption. Once the information has been gathered and analyzed, the social worker then makes a recommendation on whether or not the Court should grant the adoption.

Is there any alternative to a home study?

Judges have to make sure that the adoption is in the child’s best interests. Instead of a home study, the Probate Judge could appoint a guardian ad litem – usually an attorney – to look at the family’s situation and make a report. This is a shorter process than the home study and can be paid for by the county where the petition is filed.

What will the birth certificate look like? Will it say our child is adopted?

Your child’s birth certificate can look like any other birth certificate. On the Form VS-9, at line 21, just say that you don't want the birth certificate to reflect the adoption.

What if we are already both listed as parents on the birth certificate?

Even if you are both listed on the child's birth certificate, you still need to file a form VS-9 and pay the $60.00 fee at the time of the adoption.

What is the adoption registry and how does it affect my family?

The Maine Adoption Reunion Registry is a free service of the Maine Department of Health and Human Services. You don't have to register. This program is designed to reunite birth families and adoptees once the adoptee is 18 or older. At that time, if the adoptee and the biological family members both sign up with the Registry, a match will be made and information shared so that there can be a reunion. No match will be made without both the child and the biological parent or family signing up for the service.

Thanks to GLAD for providing some of the basic content this piece is built on. Find more information on the GLAD website

Created 12/2016