There are 1,138 legal protections that come with the institution of marriage. Five years ago, before same-sex marriage became legal nationwide, Philadelphia lawyer Angela Giampolo did her best to recreate some of those protections for her LGBTQ clients. Giampolo would draft agreements for couples to launch businesses together, contract out their intent to share ownership of their family homes, and make sure their wills and estate plans gave the surviving spouse or children the inheritance that the deceased partner desired. The U.S. Supreme Court's ruling in Obergefell v. Hodges, issued five years ago today on June 26, 2015, transformed Giampolo's practice. "It has made it easier. I don't have to be so creative," said Giampolo, principal in Giampolo Law Group in Philadelphia and Mount Laurel, New Jersey. "Allowing marriage equality has allowed a whole area of law and common-law divorce to come forward." In the five years since marriage equality spread across the United States, the main impact has been on those LGBTQ couples who tied the knot and started families. But lawyers also experienced many changes since Obergefell established the constitutional right to marriage equality. It ushered in a new way of practicing law for LGBTQ law attorneys, and opened a new market for family lawyers.

Growing practice area

Giampolo said that in the past five years since the marriage equality ruling, she's observed many existing family law attorneys enter the LGBTQ market. "You'll see a lot of everyday family law firms advertising to the LGBTQ community," said Giampolo. "Letting the world know they are accepting and they will service their legal needs just like everyone else." Some family lawyers who are new to representing LGBTQ couples may face challenges if they don't know the unique, different aspects of LGBTQ family law, said Cathy Sakimura, deputy director of the National Center for Lesbian Rights in San Francisco, California. "It's great to see how the bar is opening up and letting go of past homophobia and transphobia, and representing people," Sakimura said. "But it's hard for people who are not connected to the community to understand those unique aspects." For example, there's a big question about how to treat pre-Obergefell common law marriage in Texas and other similar states, she said. Sakimura said that when the Supreme Court declares a law unconstitutional, it means the law has always been unconstitutional---it applies retroactively. But LGBTQ people have met resistance when they try to prove their common-law marriages existed before Obergefell, Sakimura said. "So far, every court has recognized that it applies retroactively," she said. "It's a big issue in Texas."

 Presumed parent

Some of the biggest legal issues arise when LGBTQ spouses have children. Sakimura said every state has recognition that when a wife gives birth, her husband is presumed to be the father. But some states have mounted resistance to extending that presumption to LGBTQ parents, said Sakimura. The parentage issue is the biggest one in the LGBTQ family law practice of Meghan Freed, managing partner in Freed Marcroft in Hartford, Connecticut. "That can vary very much from state-to-state, even with a fully recognized legal marriage," Freed said. "Right now, in Connecticut, same-sex parents get the same marital presumption: That children are of the marriage, if they are born in the marriage. But the presumption is rebuttable. Even in Connecticut, we want to see an adoption. … It's even more important in the event of any move from state to state." Same-sex marriage has been legal in Connecticut since 2008. But before the Obergefell ruling, LGBTQ couples married there could not move to another state and have their marriages recognized. They couldn't get divorced if they moved to another state. "Obergefell, in terms of its impact on family law, one of the main things it did was help give people confidence about the portability of their marriages," Freed said. One dispute in litigation since Obergefell centers around the length of a marriage and its impact on asset distribution. Freed noted that an LGBTQ couple may have been in a relationship for decades, but married only five years ago. When getting divorced, the court only considers the married years when deciding who gets what. "It's a five year marriage, but it's a 25-year partnership," she noted. "It's an issue out there, which is what leads many same-sex couples to use alternative dispute resolution like mediation or collaborative law, to reach an agreement that honors their family structure rather than litigate it and find out." Giampolo, the Philadelphia LGBTQ law attorney, said the biggest difference in her family law practice post-Obergefell has been how many premarital agreements she needs to draft. It's because many LGBTQ couples get married when they are older. They've seen what marriage can do to people, and have a pragmatic view that marriage is like a contract, Giampolo said. Premarital agreements allow them to map out how those assets will be shared or separated, she said. "We've been watching straight people mess it up for 300 years. We are not immune to divorce," Giampolo explained. "Due to the fact we were just given this right five years ago, the people getting married tend to be older, and they tend to have assets."

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