Washington Lawyer March/April 2026
By Summer Abel and Heather Sisto Koontz
In recent years the LGBTQ+ community has achieved several victories protecting their rights, but the practical reality in family court remains uneven and, at times, unpredictable across jurisdictions.
While marriage equality and related federal protections have settled some foundational questions, state courts continue to diverge sharply in how they treat parentage, economic rights at divorce, and the legal consequences of relationships that predate formal recognition. For attorneys, these gaps between formal equality and lived experience require careful attention and a willingness to look beyond traditional family law assumptions.
In early 2026, three themes stand out: (1) continued uncertainty around parentage for nonbiological parents; (2) evolving divorce issues involving property division, spousal support, and parenting rights shaped by the timing and structure of LGBTQ+ marriages; and (3) the ongoing need for culturally competent advocacy in family law cases involving LGBTQ+ individuals. This article offers a current, practical overview for attorneys who regularly represent LGBTQ+ clients or encounter related issues in broader family law matters.
Parentage in a Post-Obergefell Patchwork
Despite marriage equality, legal recognition for LGBTQ+ parents remains far from uniform. Many of the families walking into court today were formed through assisted reproduction, known-donor arrangements, or blended coparenting structures that traditional parentage statutes never contemplated.
Ongoing fight for standing. In numerous jurisdictions, nonbiological parents still face threshold battles just to be heard, let alone helped. When statutes are outdated or overly rigid, courts fall back on judge-made de facto parentage doctrines, which vary widely in what they require.
Some states demand explicit agreements; others focus on conduct and caregiving history. A handful recognize no de facto parentage at all. For LGBTQ+ clients who may have planned their families with a shared understanding of equal parenting, these disparities can be devastating. It is not uncommon for clients to be shocked to learn that marriage does not automatically guarantee parental status everywhere. For example, Virginia does not recognize parentage for parents using assisted reproduction and does not recognize de facto parentage as a standalone legal status.
The safest plan of action remains the most straightforward: secure a court order. Whether through a second-parent adoption or a parentage judgment, formal legal recognition remains the strongest protection.
Known-donor arrangements bring risk. Known-donor arrangements have become more common as families seek connection, affordability, or cultural familiarity in their reproductive choices. But when agreements are informal — or when clinics are not involved — the risk of later litigation increases dramatically.
Many donor statutes were drafted with married heterosexual couples in mind. Courts frequently must decide whether an agreement is enforceable, whether a donor can pursue parentage, or whether involvement after the child’s birth undermines the donor’s original intent. LGBTQ+ families are often caught in the middle of that uncertainty. By way of example, the District of Columbia defines an “intended parent” as “an individual, married or unmarried, who manifests the intent in a written agreement to be legally bound as the parent of a child.” D.C. Code § 16–401(16). While the District has made this statute gender-neutral, many states rely on heterosexual terminology such as “he/she” or “husband/wife.”
Thorough and specific donor agreements remain essential, and practitioners should advise clients to treat them as foundational documents — not mere formalities.
Second-parent adoption still matters. Even for married LGBTQ+ couples, parentage laws remain inconsistent. A second-parent adoption continues to serve an important function: It ensures that parentage is recognized in every state, regardless of shifting political winds.
Clients often ask why an adoption is necessary if both parents are on the birth certificate. The answer is simple: Birth certificates are administrative records, while court orders are legal judgments. For families who travel or relocate, and for those who ever find themselves in a contested custody case, this distinction matters.
Divorce Considerations Unique to LGBTQ+ Couples
While many aspects of divorce are gender-neutral on paper, LGBTQ+ couples often encounter complications that stem from how their relationships were formed, recognized, or documented — sometimes years before the federal law caught up. Practitioners should be alert to these structural differences, which can significantly affect outcomes in property division, support, and parenting disputes.
Length of marriage and the “invisible years” problem. One recurring issue is how courts calculate the length of a marriage for purposes of property division or spousal support. Many LGBTQ+ couples lived as married, or functionally equivalent to married, for years or decades before marriage equality became available in their state. Yet some courts rigidly measure marital duration from the legal wedding date alone, effectively erasing earlier years of economic and domestic partnership.
This determination can have real consequences where one spouse curtailed career advancement, contributed labor to a partner’s business, or assumed disproportionate caregiving roles long before formal marriage was legal. In these cases, counsel should prepare to present evidence supporting an equitable adjustment, whether through arguments grounded in fairness, unjust enrichment, or, where available, consideration of premarital cohabitation and contributions.
Property division and nontraditional asset structures. LGBTQ+ couples are more likely to hold assets in ways that reflect historical barriers rather than intent. Homes may be titled in one partner’s name due to past lending discrimination; retirement accounts may have uneven balances reflecting years of unequal earning power. Businesses or professional practices may have been built during periods when marriage, and therefore spousal protections, were unattainable.
Spousal support and caregiving roles. In many LGBTQ+ marriages, traditional assumptions about breadwinner and caregiver roles do not neatly apply. One spouse may have taken on emotional labor, health-related advocacy, or unpaid caregiving that is not readily visible on a balance sheet. Others may have faced employment instability due to discrimination, lack of legal recognition, or medical needs connected to transition or fertility treatment.
Courts do not always recognize these dynamics without being shown them clearly. Effective advocacy requires translating lived realities into concrete findings tied to statutory support factors, including contributions to the marriage, earning capacity, and future needs.
Culturally Competent Advocacy to Build Trust
For many LGBTQ+ clients, a family law dispute intersects with long-standing issues of identity, safety, or rejection. Attorneys who are trauma-informed and understand these dynamics can create space for clients to be candid about their fears and better prepare them for difficult proceedings.
Simple steps, such as using correct pronouns, understanding assisted reproduction terminology, and acknowledging the emotional significance of donor relationships, can enhance trust and improve case preparation. More broadly, culturally competent advocacy helps prevent missteps that opposing counsel may exploit or that evaluators might misinterpret.
Representing LGBTQ+ individuals and families in 2026 requires more than familiarity with statutes and case law. It demands an understanding of how these legal developments intersect with identity, family formation, and the real-world challenges that LGBTQ+ litigants face. As courts continue to navigate questions around parentage, gender identity, and safety, culturally competent advocacy remains critical.
Family law, at its core, is about supporting and protecting families in all their forms. By staying informed, challenging bias, and advocating with clarity and compassion, practitioners can help ensure that LGBTQ+ clients receive the fair and thoughtful consideration they deserve in
every courtroom.
Summer Abel and Heather Sisto Koontz are family law attorneys in Offit Kurman’s Bethesda, Maryland, office. As a member of the LGBTQ+ community, Abel is passionate about supporting families of all types. Koontz’s work integrates an amicable approach with litigation, providing clients with comprehensive legal strategies tailored to their specific needs.
