I am disappointed but not surprised to report that North Carolina has taken a further step towards the dark ages and passed the Constitutional Amendment I wrote about yesterday.  The upshot is that same sex unions of any kind are no longer acknowledged in that State.  This is sure to be challenged as was Prop 8, but it will be a long battle.

In more heartening news, President Obama has finally come out of the closet to declare that he supports same sex marriage.  Here’s a link to a CNN article telling us more.

North Carolina is the only southern state without a constitutional ban on same-sex marriage, at least potentially until today –  May 8 – when citizens of North Carolina will have the chance to vote on Amendment One.  Amendment One is intended to go beyond the North Carolina state law, Statute §51-1.2, that already prohibits same-sex marriages “whether created by common law, contracted, or performed outside of North Carolina.” Amendment One, if approved, would rewrite the North Carolina constitution to provide that marriage between one man and one woman is the “only domestic legal union that shall be valid or recognized in this State.”

This is an extraordinary step that significantly reduced the civil liberties of same sex couples in North Carolina.  That state is one of many states grappling with ballot measures to ban same-sex marriage. In 2008, California adopted Proposition 8 that amended California’s constitution to define marriage as that between a man and a woman. Proposition 8 was adopted to counteract a 2008 California Supreme Court decision, In re Marriage Cases, granting same-sex couples the right to marry. Proposition 8 was successfully challenged in a 2010 district court decision, Perry v. Schwarzenegger, which declared the amendment unconstitutional. Recently, the Ninth Circuit upheld Perry but the ability of same-sex couples to marry is on hold pending further appeal.

While the future of same-sex marriage in California is as yet undetermined, same-sex domestic partnerships will continue to be recognized in California, thus affording same-sex couples some of the important benefits granted to married couples. The domestic partnership laws in California stand in stark contrast to Amendment One. Indeed, what is unique (and particularly troubling) about Amendment One is that it goes beyond a ban on same-sex marriage and bans same-sex civil unions and domestic partnerships. Some legal analysts have even suggested that the language of the amendment prohibits opposite-sex civil unions and domestic partnerships leaving marriage as the only legally recognizable “union.”

In eliminating domestic partnerships and civil unions, Amendment One poses serious problems for same-sex couples seeking to protect their rights relating to inheritance, child custody, property ownership and health-care decision-making. Although Amendment One seems to allow for private contracting to set forth these rights, certain agreements relating to child custody, health-care directives, death benefits, etc may not be protected unless civil unions or domestic partnerships are legally recognized. Consequently, same-sex couples in California ought to pay attention to the outcome of the May 8 vote on Amendment One, and not only for how it will impact same-sex couples in North Carolina. Amendment One serves as an important, albeit sobering, lesson for same-sex couples everywhere: it is imperative to understand what rights exist for same-sex couples in your jurisdiction and how to protect those rights. For that reason, it is useful to contact an expert in domestic partnerships as various groups continue to attempt to diminish existing protections.

To learn more, contact one of our domestic partnership attorneys.

Maryland’s highest court is considering whether same sex married couples can be divorced in the State. Maryland currently does not allow same sex couples to marry – that’s clear. The question is whether the State can then extend that prohibition to keep same sex couples from divorcing as well.

As some background, often times gay couples living in aState where same sex marriage is not allowed will visit another more progressive State in order to get married. This creates certain tax and financial complexities for the couple, but they’re willing to live with it for the sake of love. The real problems manifest if the couple later needs to divorce. In a State such as Maryland where the rules are inconsistent, one judge may grant the divorce while another may not. If the couple is not allowed to divorce, they’re stuck in a very painful limbo. They can either stay married – which means they can’t marry anyone else, and are still financially responsible for one another; or they can move to a State that does allow same-sex divorce for long enough to get jurisdiction in that State – which usually takes six months. Those are expensive propositions. Not everyone can afford to uproot their lives and move to another State.

California and the District of Columbia have recently enacted laws to alleviate this problem at least for couples married in their jurisdictions. California enacted the Domestic Partnership Equality Act in January 2012, which allows same-sex couples married in California but living elsewhere to get divorced in California without having to move there. DC passed a bill which does much the same in March of 2012. But those laws only solve part of the problem, as not all same sex couples were married in California and DC.

States that do not recognize same sex marriage should at least allow those couples to divorce in their States. The negative consequences are too great otherwise.

Besides, doesn’t it seem just a little too ironic that a state which says it doesn’t believe in same sex marriage is forcing same sex couples to stay married?

California’s domestic partnership laws do not provide all of the rights of marriage. On October 9, 2011 the legislature and Governor Brown corrected some of that inequity by passing the Domestic Partnership Equality Act. Effective next January, the law will provide for several rights already existing in marriage.

First, and arguably most importantly, the law will allow same-sex couples married in California but living in states that do not recognize their marriage, to get divorced in California. Previously, these couples were stuck in limbo – unable to get divorced, and having a marriage only recognized in certain states.

This provision of the law corrects a serious conundrum for same-sex couples. The Federal Defense of Marriage Act (DOMA) allows states to not recognize same-sex marriages consummated in another state. Many people hoping to marry their same-sex partner go to one of the few places allowing it, but then are shocked to see that they cannot get divorced in their home state when the marriage dissolves. Same-sex marriage then becomes a prison instead of a liberating institution. Only six states, Washington D.C. and two tribal nations have marriage equality. 30 states ban same-sex marriage by constitutional amendment and 11 states ban it by statute alone.

This provision of the Domestic Partnership Equality Act immediately applies to marriages entered into before Proposition 8 passed and will apply to future marriages if Proposition 8 is ruled unconstitutional by the courts.

Second, under the new law, couples will no longer have to share a common residence in order to qualify as domestic partners. This is already the case with marriages.

Third, the law further allows people under the age of 18 to become domestic partners, though they would need a court order and the consent of their parent or guardian.

Finally, The Domestic Partnership Equality Act allows domestic partners to enter into a confidential domestic partnership. The paperwork they file with the Secretary of State would remain sealed unless opened by Court order. This advancement brings domestic partnership closer in alignment with marriage, which allows for confidential marriages.

The domestic partnership laws are complex and still differ significantly from marriage. Additionally, because federal policy differs from state policy, domestic partners also have distinct challenges dealing with the federal government. Many couples desiring to enter into a domestic partnership attempt to smooth out the wrinkles in domestic partnership with a prenuptial agreement. A couple wanting to enter into a domestic partnership is wise to consult with an experienced family law attorney.

The issue of whether marriage rights should be granted equally to everyone is, inexplicably, an on-going debate around the country.  Complicating the conversation is the fact laws are applied differently from state to state, and that federal and state law conflict at various points.  As of the writing of this post, lesbian and gay couples who are legally married under state laws are nonetheless denied federal benefits because of the so-called “Defense of Marriage Act” (DOMA).

For this reason, it is important to understand which rights marriage traditionally confers, and how these rights differ between state law and federal law.  This knowledge can allow both gay and unmarried heterosexual couples to protect their families.

Many gay and lesbian couples attempt to use premarital agreements and estate planning methodologies to overcome some of the federal inequities.   This can be effective to an extent, but the use of wills, powers of attorney, advanced healthcare directives, and cohabitation agreements simply cannot resolve all of the problems created by DOMA.   For instance, these strategies do nothing for lesbian and gay couples who wish to keep their non-citizen spouse or partner in the U.S. and avoid deportation.  The estate planning alternatives are little comfort to a family torn apart my immigration policy.

The following is a highlight of many of the Rights and Responsibilities afforded to California married couples and California Registered Domestic Partners (RDPs)
1. Joint parental rights of children if born during the marriage or RDP
2. Joint adoption
3. Joint Insurance Plans
4. Status as “next-of-kin” for hospital visits and medical decisions
5. Bereavement or sick leave to care for partner or children
6. Right to make a decision about the disposal of loved ones remains
7. Crime victims recovery benefits
8. Standing to sue for wrongful death or for “loss of consortium”
9. Wrongful death benefits for surviving partner and children
10. Welfare and public assistance
11. Domestic violence protection orders
12. Judicial protections and immunity—testimonial privilege in court proceedings
13. Automatic inheritance in the absence of a will (or in the event that a will is invalidated)
14. Filing of joint state income tax returns
15. Testimonial privilege in state court proceedings
16. Spousal protection from property tax increase upon the death of a co-owner spouse

Here is a list of some of the most important Federal Rights & Responsibilities of Marriage, which are denied to same-sex couples because of DOMA.
1. Immigration and residency for spouses from other countries
2. Crime victims recovery benefits
3. Judicial protections and immunity in federal court
4. Joint filing of bankruptcy petitions
5. Spousal veterans benefits
6. Social Security benefits
7. Medicare benefits
8. Joint filing of federal tax returns
9. Income tax deductions, credits, rates exemption and estimates
10. Deferred Compensation for pension and IRAs
11. Estate and gift tax benefits  (there are substantial estate tax benefits to marriage)
12. Medical care for survivors and dependents of certain veterans

Our office regularly advises clients on how to protect themselves and their families, whether or not they decide to marry.  If you have any questions about your rights in the light of DOMA or other federal statues, you should contact a qualified family attorney.  We’re happy to help.

Most parents in California are still under the impression that in a dispute “Mom gets the kids,” and that Dad gets “some visitation.” In reality, the California courts have changed the custody goals in recent years to rebut this old stereotype.

When it comes to custody matters, the goal of the courts – as prescribed in California Family Code Sec. 3040 – is to create a plan which is in the best interests of the children, and to aim for joint legal and joint physical custody. This often means an equal timeshare with both parents (sometimes historically referred to as a “50/50 split.”) The important implication here is that Dad has just as many rights to equal time with the children as Mom. This intention to grant both parents equal time with the children is simply what the court system believes is in the best interest of children. Judges often stress in their courtrooms the benefits to children of having both parents involved in their daily lives.

The important distinction to recognize is that the “goal” of the court system is not necessarily determinative of the final custody outcome. In a perfect world, after a couple splits up, both parents would get along like old pals, live in the same neighborhood, be responsible and conscientious parents, and raise their children together without a single disagreement. Needless to say, this is not the reality we usually see.

More often, we see custody arrangements with varying schedules, and unequal division of time between mothers and fathers. Sometimes mothers are given primary custody of the children, and other times, fathers are awarded primary custody. Fortunately, in most cases in California, the court’s custody decisions are no longer based upon biased preferences for mothers, but are based solely on the best interest of the child, which could result in any number of varying timeshare schedules.

In making custody decisions, the courts take many issues into consideration as they are evaluating each parent individually. The court takes this job very seriously, effectively putting each parent under a microscope throughout the custody process. If a court believes that both parents are equally fit to care for the child, and the geographic distance between the parents is minimal, there is a high likelihood the court will strive for an equal timeshare with both parents. Even if an initial custody order does not reflect an equal custody arrangement, the court’s goal is always to move closer to an equal timeshare schedule as time goes by.

Custody cases are far from black and white. With the diminishing stereotype that children belong only with their mothers, the courts are focusing on parents as individuals. While this may have the unintended effect of increasing an already complex litigation process, the court’s long-term goal of joint custody and equal timeshare is a reality that both parents need to understand when facing custody disputes.

Is entering a California “registered domestic partnership” the right move for you and your partner?  More and more gay and lesbian couples are finding that the law relating to their relationship is confusing, and potentially very expensive.

Many couples who have been together for years, and who registered as domestic partners, are surprised when they later end their relationship and discover they are subject to the special rules surrounding “community property.”   In other words, they discover that half of their earnings during the domestic partnership are deemed to belong to their partner, and that they may have to pay spousal support (sometimes called alimony).   This is all because California law now extends the same burdens and benefits of marriage to registered domestic partners.

Further complicating matters for lesbian and gay couples is the fact that while some states recognize California domestic partnership, many do not.  This becomes a problem when gay and lesbian couples move out of California and then wish to “divorce” in their new state.  Many are forced to move back to California for the sole purpose of finalizing their divorce.

Gay and lesbian couples in California also face the reality of a complicated and confusing tax filing process.  In California, domestic partners must file their returns as “married.”  Because of the so-called “Defense of Marriage Act,” however, the IRS and federal government refuse to acknowledge either gay marriage, or domestic partnerships for tax purposes.  Thus, gay and lesbian couples must file separate individual returns for federal taxes, and then complete a mock “married” federal return in order to get the proper numbers to then go back and place on their California state returns.  This quickly becomes extremely complicated.

More and more gay and lesbian couples are using Preregistration Property Agreements (“prenups”) to avoid many of these community property and alimony issues later on.  Other couples are choosing to not register at all, and instead are making sure that they have the appropriate documents such as wills, trusts, powers of attorneys and healthcare directives in place to protect themselves and create a quasi-marital relationship.

There is no right answer to how any couple should memorialize their relationship.  Understanding the legal effect of their decisions however, can save time, frustration, and potentially money down the line.