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A More Progressive Approach to Legal Representation

Appellate court has yet to decide whether it will hear same-sex divorce case

Thanks to the landmark decision reached by the Supreme Court of the United States last summer in Obergefell v. Hodges, same-sex marriage is now legally recognized in all 50 states, meaning all married couples -- regardless of their sexual orientation -- now enjoy the same rights and responsibilities.

While you would think that Obergefell would effectively be the last and definitive word on all matters relating to same-sex marriage, it's important to note that the decision did not address situations involving divorce and/or the awarding of parental rights where neither of the same-sex partners legally adopted their children.

By way of example, consider a case that played out in a Tennessee courtroom this past summer and is being carefully watched by members of the state's legal community.

What's the background of this Tennessee case?

Two women, E.W. and S.W., were legally married in Washington, D.C. back in April 2014 and shortly thereafter moved to Knoxville. Here, they purchased a home and elected to have a child via artificial insemination using an anonymous donor.

A child was ultimately born to S.W. in January 2015, but E.W.'s name was omitted from the birth certificate, as same-sex marriage was not legally recognized at that point in time.

S.W. ultimately filed for divorce in February 2016 and a custody battle ensued, with S.W.'s attorney arguing that the only law in Tennessee addressing artificial insemination and parental rights makes it clear that it's only applicable to husbands.

What was E.W.'s argument?

E.W.'s attorney argued that under Obergefell, the court must interpret the state's artificial insemination and parental rights statute to include not just husbands, but also same-sex spouses.

"The argument that marriage may only consist of a 'husband' and a 'wife' has been held to be unconstitutional," she said. "Just because the [artificial insemination] statute reads man and woman, this court can interpret the statute in a manner that makes it constitutional."

What did the trial court decide?

The trial court judge found that a strict reading of the statute showed that it was inapplicable to E.W., and that since there was no other biological or contractual relationship, she had no right to seek custody of the child. Indeed, her only option would be to pursue visitation rights.

However, the trial judge did put the divorce action on hold, granting E.W. the chance to appeal the decision to the Tennessee Court of Appeals.

What's the status of the case?

Thus far, the Tennessee Court of Appeals has yet to rule on whether it will hear the case. In recent developments, however, a group of 53 state lawmakers signed a motion to intervene in the case that was filed by the Constitutional Government Defense Fund and which essentially endorses the decision of the trial court.

Stay tuned for updates in this important case …

If you have questions or concerns about pursuing a same-sex divorce here in Tennessee, consider speaking with a skilled legal professional who can provide answers and pursue solutions. 

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Mathis, Bates & Klinghard PLLC
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Clarksville, TN 37040

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