Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

When a relationship starts getting serious, people think about living together. For some couples, this happens after just a few months. Others might wait a year or more before deciding to move in together.

Often, especially for younger couples, this means moving into one person's apartment or other rented home. Here are the legal issues you should consider:

Telling Your Landlord

Your lease may say that you have to tell your landlord if you want to add a roommate. It may even limit how many people can live in your unit. Even if it doesn't specify any of these things, you should still tell them so that everyone is on the same page. You don't want to give your landlord any reason to evict you or charge you some penalty for not revealing a change in occupancy.

You certainly don't have to tell your landlord your relationship status with your partner. You can just call yourselves "roommates" and be done with it.

Most couples probably don't bother telling their landlord, and think that the landlord probably won't notice or find out anyway. They will. Go ahead and tell them so that you avoid problems later.

Will You Have to Pay More?

Probably. The landlord can increase the rent and usually the security deposit based on an additional person living in the apartment. Go ahead and pay it—it’s not worth it to hide the fact that you and your partner are now living together there.

Rights and Responsibilities of the New Person

If you move into your partner’s apartment, can the landlord make you pay rent or charge you for damaging property? Can you live there if your partner moves out?

No, unless you decide to become a cotenant. Let’s say Amy moves into Jannelle’s apartment, and Janelle tells that to her landlord. This could develop in four ways:

1. They don’t do anything else.  The lease will still only be a contract between the landlord and Janelle, so the landlord can’t make Amy pay rent, and the landlord doesn’t owe Amy anything.
2. Amy and Janelle sign a new lease that makes them both cotenants. Now, they each have obligations to pay rent and other things and each have a right to live in the apartment.
3. Without signing a new lease, they tell the landlord that Amy is going to be a cotenant. Depending on state laws, this might create an oral contract that has the same effect as #2
4. Without signing a new lease or telling the landlord that she’s now a cotenant, Amy starts acting like one. She pays rent directly to the landlord. Also depending on state laws, this might create an implied contract, again having the same effect as #2.

Subtenants

Sometimes the person moving in will contribute to the rent, but will pay the money directly to his partner, not to the landlord. This is a subtenant relationship.

The key difference between being cotenants and one person being a subtenant is in who can legally kick someone out:

• Cotenants: The landlord, but not the original tenant, can end the lease for either person.
• Subtenant: The original tenant can legally tell the new person to move out.

A lot of couples like this relationship better at first. If the couple breaks up, the original tenant can legally tell his ex to move out. But watch out—your landlord may not let you do a sub-tenancy. If they don’t—and it’s what you want—it’s much better to find an apartment complex that will than to hide it from your landlord. 

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Unless they live in a gay marriage state, same-sex couples don't have access to marriage laws that say how property and income brought into a relationship is treated. Instead, partners need to come up with a system to handle their finances.

Here are the most popular ways and their consequences:

As a Traditional Marriage

Under this model, couples have two sets of property:

1. Property  from before the relationship: Each person keeps their separate ownership of what they had from before.
2. Property from during the relationship: The couple treats anything that either person earns or acquires as belonging to both partners equally. Income and salaries, as well as expenses and debt, are all owned jointly. If the couple ever breaks up, they divide everything from during the relationship equally.

By Financial Ability

This model is for when couples want each other to contribute based on their ability to pay. Sometimes one partner makes substantially more than the other, and this model reflects that it would be too hard for the lower-income partner to pay just as much as the higher-income earner.

For example, let's say one woman earns $100,000 a year, and her partner earns $50,000. They would still share joint banking accounts from which they'd pay all their bills, but the higher income earner would contribute two-thirds of the joint account, while her partner would only need to contribute one-third of the amount.

As a Business

Under this model, the couple agrees to split some things, but keep other things separate. They would still open joint banking accounts and have joint credit cards, but they'd only use them for certain things.  For example, two men living in a house together might share a bank account to which they contribute a small amount for household expenses. They might also have a joint credit account they use for trips or for things they know they'll share.

Banks can help set up this model. They can label accounts by purpose and assign different shares of ownership.

As Separate Individuals

Finally, couples can agree to own everything--income, debts, property, investments--completely separately. They'll have no joint bank accounts or credit cards. Both small expenses like food and gas and large ones like mortgage payments are owed and paid for by each person individually.

So who pays what? It's up to each couple to come up with a system, which can range from complicated (a weekly spreadsheet detailing how much each person has paid) to simple ("I'll pay for the movie if you get dinner.")

Which way do you think is best? What's worked for you?

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The Maryland attorney general today said that the state should recognize gay marriages performed in other states. Here's the text [PDF] of the attorney general's opinion.

This would make Maryland and New York the only states that don't allow gay marriage themselves, but do recognize ones from states where gay marriage is legal.

But be careful what you read about this. The Lambda Legal press release, for example, says that Maryland has now joined New York in recognizing out of state gay marriages, but the attorney general's opinion has made no new law.

In fact, the opinion suggests three ways Maryland could implement this recognition:

Such marriages may be recognized in several ways. First, legislation enacted by the General Assembly could provide for recognition of out-of-state same-sex marriages generally, or for particular purposes. Second, in the absence of legislation, the Court of Appeals, applying common law choice-of-law principles, could decide that such marriages will be recognized in Maryland, either generally or in particular circumstances. Finally, a State agency may also address the recognition of out-of-state marriages on particular matters within that agency's jurisdiction, so long as the agency's action is consistent with any relevant statutes and court decisions, including federal laws that may govern the agency's activities.

I also found interesting the attorney general's list of how the marital status of gay couples married in a different state is important to the Maryland government. He said:

1. The couple could move to Maryland for employment.
2. They might take a vacation in Maryland or stop there while traveling to another state.
3. They might live in Maryland, go to another state to get married, and then return.
4. Without ever stepping foot in Maryland, their marital status might be legally significant for other people that do live there.

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A lot of times people assume that all conservatives are against gay rights and all liberals are for them.

A federal gay marriage case is risky, they say, because the Supreme Court has a conservative majority. Or, as they said before, Maine voters will uphold gay marriage because it's such a liberal state. Turned out that wasn't the case.

Political ideologies don't necessarily predict support for gay rights, as last week's Adar v. Smith  decision shows. The Fifth Circuit Court of Appeals, arguably the most conservative circuit after the Fourth, said that Louisiana must recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Conservatives tend to put precedent over public policy, and that's what the court did here. While Louisiana might have its own public policy reasons for not allowing gay adoptions, the court said that the full faith and credit clause requires the state to recognize out-of-state ones.

That's why gay rights cases relying on more conservatives arguments are more promising than ones that rely on public policy reasons. Take, for example, Gill v. OPM, the Massachusetts case asserting that marriage rights should be left up to the states, a typical conservative argument.

Especially if the Supreme Court keeps its historically conservative bent, arguments like these may have the most success in recognizing more rights for same sex couples.

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Here's a guide to gay adoption states, showing where and to what degree gay adoption is legal. Check other posts for information on second parent adoption or gay adoption laws generally.

What Is It?

Two men or women adopting, as a couple, another child.

States Where It's Always Legal

• California
• Connecticut
• Illinois
• Indiana
• Maine
• Massachusetts
• New Jersey
• New York
• Oregon
• Vermont

States Where It's Legal in Some Counties

• Nevada
• New Hampshire

Keep in mind that a judge often grant a joint gay adoption in other states, but there's no law in those states saying whether it's allowed or disallowed.

States Where It's Never Legal

• Utah
• Florida
• Mississippi
• Michigan
• Arkansas

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Here's a guide to gay adoption laws. Keep in mind that gay adoption rights are set out by state law, so the following is just a general overview. I'll update this post with more information occasionally.

For more coverage, check out two previous posts on second parent adoption and gay adoption state laws.

General Issues:

• Usually you file the adoption in the county that you and the child live. It gets more complicated if the child lives in another state, but it's doable.
• Any child can be adopted, but adoption agencies will usually allow only what's in the "best interest" of the child. They might not allow the adoption if you have a different religion or race, but this is becoming more rare.
• Every state lets you change the child's last name at the time of the adoption.
• Almost all states will seal the adoption records.
• Almost all states will grants a new birth certificate showing the child's new last name.
• Every state will require a social worker investigation and a court hearing. 

For gay adoption state laws.

Some Advice

• Get a lawyer. You don't need one, but when it comes to securing your relationship with your child, you want to make sure all your ducks are in a row.
• Want to adopt through a private agency? Be prepared to wait. You'll have to find someone that's willing to let their child be raised in a same-sex household, and not everyone wants that.
• Fastest way to adopt? Being flexible in the child you adopt. You'll find it easier if you're willing to adopt a child who's a different race, older, or disabled.

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I talked about the key to a successful marriage earlier this week at my other blog, the Atlanta Divorce Law Blog. But I think the advice applies just as well to same-sex relationships.

I linked to an editorial by Leah Ward Sears, who served as a Georgia divorce judge for 26 years. She said that more than anything else, it's plain old commitment that makes a marriage last:

There is a lot of conventional wisdom on the key to a successful marriage. Marry someone you love. Marry someone who makes you laugh. Marry someone who can put up with you. Marry someone who is financially secure. Marry someone with similar values, common interests and a good education. All are good advice. But after years of thinking about and studying this country’s divorce epidemic, I now believe that the key to most successful marriages is when the couple is more committed to the health and longevity of the marriage than to each other. That way, during those times when they can’t stand each other — and those times surely will come, as no one is perfect— they have something to fall back on and remain committed to.

Leah's advice is particularly important for gay couples who can't get married. The marriage document is a tangible representation of a commitment to the other person. Most same-sex couples instead are stuck in the boyfriend/girlfriend/partner stage where the commitment doesn't have a similar tangible representation.

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The Fifth Circuit Court of Appeals ruled today that Louisiana has to recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Last October I talked about Adar v. Smith, the Fifth Circuit case where a couple that went to New York to legally adopt a baby born in Louisiana couldn't get an updated birth certificate from Louisiana. Back then, Louisiana said it didn't have to recognize adoptions from other states that it wouldn't perform itself.

The Court today said otherwise. Here's a PDF of the unanimous opinion in favor of the gay couple.

Why is This Case Important?

Because it's about how the full faith and credit clause applies to gay rights. The full faith and credit clause is the part of the U.S. Constitution that makes one state recognize the judgments of another state.

Sound familiar? You often hear about how states that don't allow gay marriage should have to recognize gay marriages from states that do. Instead, states without gay marriage give a similar argument to the one Louisiana gave in Adar v. Smith--that they shouldn't have to recognize marriages that they themselves would not allow.

What Did the Court Say?

Here's why the Fifth Circuit said the full faith and credit clause makes Louisiana recognize the New York same sex adoption:

• First, it recognized that the Supreme Court has said that there are no "public policy exceptions" to the clause.
• Second, it disagreed with Louisiana's argument that adoption decrees are more like a statute than a judgment. Louisiana said that because the New York adoption decree represents New York public policy created by New York statutes, recognizing the adoption would be replacing Louisiana's policy with New York's.
• Instead, the court said that the birth certificate is required because it recognizes what New York has already done (the recognition required by the clause). It does not have to reflect would Louisiana would do on its own.

So what does this mean for gay marriage?

Not much. While the court says that domestic-law judgments must be given full faith and credit by other states, a marriage is not a judgment. Further, what gay marriage faces that gay adoption doesn't face is DOMA, a federal allow that says specifically that states don't have to recognize gay marriages from other states. Unless DOMA is repealed or is ruled to be unconstitutional, marriages from gay marriage states probably won't get recognized elsewhere.

Be sure to read the press release from Lambda Legal, which represented the two men.

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Remember last year when Judge Tena Callahan let a gay couple get divorced?

It's happened again.

Judge Scott Jenkins let two women who married in Massachusetts five years ago get divorced in a Texas court earlier this week. The decision was made orally, so there's no written order available.

Of course, just like the case last year, this case will be appealed. The Texas attorney general, Greg Abbott, has already intervened to challenge the divorce order. He said that the couple can void the marriage agreement, but they can't get a divorce. Making the marriage void would let the couple "achieve a legal termination of their Massachusetts marriage, through an enforceable judgment."

With the mostly conservative Texas appellate courts, it's unlikely that the divorce will last down the line. The possibility that Texas joins the ranks of the other gay marriage states is even less.

Thanks to Michelle O'Neil, a Dallas divorce lawyer, for pointing out the article to me.

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