LGBTQ+ Legal Issues
Here at Van Winkle Legal we have a long history of working for the LGBTQ+ community. This includes our founding member, Travis Van Winkle (preferred pronouns are he/him), serving on the Sexual Orientation and Gender Identity Committee for the Indiana State Bar Association since its formation. During three of those years, he served as the Chair of the Committee. Travis was one of the first, if not the first, attorney in the State of Indiana to obtain a gender marker change for a minor child while also successfully arguing for the case file/records to be sealed to protect the client.
While both minor gender marker change cases and the sealing file/records are certainly more now, there was a time, in the not so recent past, when neither were happening in Indiana. Travis and other dedicated advocates, played a large role in the turning of the tides on these fronts.
Understanding Your Needs
Travis and his team understand the special legal needs of the LGBTQ+ community. As an Indiana LGBTQ+ advocate, Travis strives to bring competent, compassionate and aggressive representation to the table. No doubt about it, a lot of progress has been made in the last few years, but we still have a long way to go to ensure the LGBTQ+ community is treated properly and equitable under the law.
We provide services to our LGBTQ+ friends in these areas below:
Name Change/Gender Marker Change
Sadly, we still see certain courts in the State of Indiana taking discriminatory actions toward people in pursuit of a name change and/or a gender marker change. The reality is our Court of Appeals has made it clear that such requests should be granted as long as they are made in good faith and not for some fraudulent and/or criminal purpose. Still, we see trial courts attempt to make the process more complicated and/or force a litigant to take steps which are not required under the law. For instance, there is no requirement that a gender marker petition be published in a local newspaper, yet, courts often require same.
At Van Winkle Legal, we will advocate for our clients by making sure the court is aware of what is actually required under the law and resist attempts to force additional steps/burdens/hurdles on our clients.
Same-Sex Adoption
Travis has handled numerous same-sex adoptions over the years. Despite same-sex marriage being deemed constitutional by the U.S. Supreme Court, there are still times when a married same-sex couple will need to adopt. This is obviously the case when talking about a male same-sex couple. However, even though the 7th Circuit Court of Appeals has found that a child born to married women is considered a child of both women, that decision only goes so far.
There are certain requirements regarding the manner in which the child is conceived which may necessitate the need for the non-birth parent to adopt. We also work with same-sex clients with the adoption of children which are not biologically tied to either party. These are commonly referred to as non-relative adoptions.
Travis has presented at various continuing legal education programs on same-sex adoption and the issues which come up when the couple is married vs. not married. We are here and ready to help you with the legal formation of your family.
Cohabitation/Domestic Partnership Agreements
Despite same-sex marriage being recognized across the country, there are still a large number of people – opposite-sex and same-sex couples – who opt to not marry. In those instances, a cohabitation agreement or a domestic partnership agreement can go a long way to avoiding conflict and legal costs down the road. These agreements are rather like prenuptial agreements.
However, they not only control how assets/debts will be handled if a relationship ends, but also can spell out how the debts and assets will be handled during the relationship.
We have all heard stories of that friend who lived in the significant other’s home for years. The relationship then comes to an end and one party find themselves without a home or much in the way of legal standing. A cohabitation and/or domestic partnership agreement will make sure you do not find yourself in this position.
Prenuptial Agreements/Postnuptial Agreements
These can both be powerful tools and when properly implemented. They can prevent a bad situation from turning into a nightmare situation. Just as we should plan for the end of life, we should plan for the end of our marriages. While Travis is always in favor of a marriage being saved, the reality is this is just not always possible. A prenuptial agreement can provide assurances to both parties ahead of their marriage by bringing structure to the division of property and payment of debt during marriage and/or after a divorce.
A postnuptial agreement can be an extremely effective tool to give a couple on the brink of divorce a second chance. Such an agreement is entered into during the marriage. It offers a means of bringing stability to the table in areas that can often be a source of conflict….money (as we are sure you guessed). This is accomplished by setting forth who will receive which assets should a divorce occur in the future and by determining who is responsible for certain debts both during the marriage and upon its dissolution.
Dissolution of Marriage
Given the U.S. Supreme Court establishing the constitutionality of same-sex marriage under 14th Amendment substantive due process rights, Indiana’s dissolution of marriage laws are applicable in same-sex divorces. However, there are still important concerns to be taken into consideration when handling a divorce for members of the LGBTQ+ community. Travis can help you navigate these waters to ensure you are recognized by the Court and your former spouse for who you are and what you believe.
Estate Planning for Same-Sex Couples
Whether married or not, same-sex couples, just like any other couple, need to have solid estate planning measures in place. It is true that married (same-sex and/or transgender couples) will be afforded more protection under the law by virtue of their marital status. Despite how many years a couple have lived together, an unmarried couple is not afforded these same protections.
Sadly, we still see life-partners denied access to hospital and/or hospice facilities because of the decisions made by the family of the other partner. There are also too many people in the LGBTQ+ community who end up shut out of the assets held in the name of their partner but which they spent a lifetime helping to acquire and enhance. Travis and his team can work to ensure this does not happen to you.
There are a growing number of skilled nursing and assisted living facilities that specialize in the care of LGBTQ+ individuals. Should you want to make sure you are able to live in such a facility down the road, there are steps that can be taken with the help of Travis and his team to ensure those wishes are carried out in the event of your incapacity and/or disability.
Too many people put estate planning and long-term care planning off and only seriously think about the need for such planning when faced with a catastrophe. Do not let this happen to you and the people you love. Contact us today for more information.