Same Sex Divorce

In a landmark decision for New Mexico, on January 28, 2014 the New Mexico Supreme Court determined in Griego v. Oliver that:

  1. New Mexico may neither constitutionally deny same gender couples the right to marry nor deprive them of the rights, protections, and responsibilities of marriage laws.
  2. The purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.
  3. New Mexico is constitutionally required to allow same gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.
  4. Same gender couples who are in loving and committed relationships and want to be married under the laws of New Mexico are similarly situated to opposite gender couples who likewise are in loving and committed relationships and want to be married.
  1. The New Mexico Human Rights Act includes “sexual orientation” as a class of persons protected from discriminatory treatment.
  2. It is against public policy to deny parental rights and responsibilities based solely on the sex of either or both of the parents.
  3. “Civil marriage” shall be construed to mean the voluntary union of two persons to the exclusion of all others. In addition, all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same gender and opposite gender married couples. Therefore, whether they are contained in New Mexico statutes, rules, regulations, or the common law, whenever reference is made to marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower or any other word, which, in context, denotes a marital relationship, the same shall apply to same gender couples who choose to marry.

Subsequently, on June 6, 2015, in Obergefell v. Hodges, the United States Supreme Court in a landmark civil rights determined that:

The fundamental right to marry is guaranteed to same sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Supreme Court required all states to issue marriage licenses to same sex couples and to recognize same sex marriages validly performed in other jurisdictions, which had the effect of legalizing same sex marriage throughout the United States, and its possessions and territories.

The right to personal choice regarding marriage is inherent in the concept of individual autonomy.

The right to marry is fundamental because it supports a two person union unlike any other in its importance to the committed individuals”, a principle applying equally to same sex couples.

The fundamental right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. As same sex couples have children and families, they are deserving of this safeguard—though the right to marry in the United States has never been conditioned on procreation.

Marriage is a keystone of our social order, and there is no difference between same and opposite sex couples with respect to this principle. Consequently, preventing same sex couples from marrying puts them at odds with society, denies them countless benefits of marriage, and introduces instability into their relationships for no justifiable reason.

Same sex marriage bans violate both the due process clause and the equal protection clause of the 14th Amendment to the Constitution. Accordingly, same sex couples may exercise the fundamental right to marry in all fifty states.

Every state must recognize same sex marriages legally performed in other states.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. Marriage embodies a love that may endure even past death. Same sex couples ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Accordingly, due to the above precedents, same sex marriage is identical in all respects to opposite sex marriages, with respect to child custody, rights to support, and ownership of property and its incidents.

Prior to the above cases, and ever since, Atkinson & Kelsey P.A., has represented those in same sex relationships and marriages no different than any other opposite sex case and continues to so.

 

For a consultation with an Atkinson & Kelsey attorney regarding your Same Sex divorce, custody or other family law issue, call us toll free at 800-640-3070, or contact us online.