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

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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I talked about dividing personal property for married couples today at my other blog, the Atlanta Divorce Law Blog.

I think the advice is even more important for domestic partnerships, because partners who are breaking up lack guidance and rules given by state divorce laws (except for the few states where gay couples can get married).

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A Texas state appeals court this month recognized the parental status of the non-biological mother in a lesbian relationship. The ruling came reverses a previous one by the same court that said the non-biological mom had no parental rights because she was not married to the biological mother.

Before the ruling, the non-biological mother, who had split from her partner, wasn't allowed to petition for custody or visitation rights to her ex-partner's child. Now she'll be able to.

Nancy Polikoff, a law professor at American University Washington, explained the court's reasoning:

The court ruled that K.V. [the non-biological mother] was "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition" and that therefore she could file her petition [for custody and visitation rights]. It referred to prior court decisions involving a stepmother and a grandmother who were able to maintain their actions.

Michelle O'Neil, the attorney for the non-biological parent, talked about the case earlier this month in the Dallas Voice. Michelle writes frequently about LGBT family law in Texas, so you should check out her blog if you're particularly interested in that state's issues.

The court's reversal comes just after a lesbian won the mayor's seat in Houston, giving Texas two recent steps forward in gay rights and legitimacy.

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Tara Siegel Bernard, a reporter with the New York Times, told me about a new feature on the paper's personal finance blog, Bucks. It's called, "What If You're Gay" and explores the complex financial issues that gay families face.

The first two posts in the series talk about gay divorce, including the higher costs associated with gay divorce and tips on how relationship laws affect couples breaking up. For example, the first post talks about a hypothetical couple getting divorced in Massachusetts:

But even a couple who marries and divorces in a state like Massachusetts — where gay marriage is legal — can face higher costs. The Internal Revenue Service hasn’t issued any guidance, but gay couples may not be entitled to the same tax-free division of assets as their heterosexual counterparts (at least as far as federal taxes are concerned) because of the Defense of Marriage Act, which bans federal recognition of same-sex marriage. Dividing the proceeds from a $500,000 home, for instance, could potentially translate into a $250,000 gift, subject to federal gift taxes (or at least use of part of your $1 million lifetime gift-tax exemption). For wealthy couples, the stakes are even higher.

Because I've gotten several questions about how being domestic partners affects insurance options, I suggested to Tara that the blog cover that topic. I'm looking forward to more posts in the series.

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Folks who live in Maine might be thinking about getting married in Canada after their state voted down a law that would have allowed gay marriage. In fact, many U.S. gay residents go to Canada to take advantage of laws that have allowed gay marriage since 2005.

But they better hope they stay together. It's hard for same sex couples to get divorced after getting married in Canada.

While couples can easily go to Canada for a weekend and get married, the country has more strict requirements when its comes to divorce. The Canadian Divorce Act says that for a couple to get divorced in Canada, one person must have lived in the country for at least a year just before the divorce. Not surprisingly, people may not want to move to Canada for a year just so they can get divorced.

But staying home has its own problems. The reason a gay couple goes to Canada to get married in the first place is usually because their own state doesn't allow gay marriage. But if it doesn't allow gay marriage, it probably won't allow gay divorce either. So Maine residents who now go to Canada to get married, for example, won't be able to get divorced back in their home state.

Barbara Findlay, a family lawyer in Vancouver, summarized the situation in the latest issue of Lawyers Weekly:

So unless they happen to be very wealthy and have nothing better to do with their time than to hang out in Canada for a year, they really can’t get a divorce here. In other words, they are stuck in a divorce catch-22.

Couples married in Canada aren't completely out of luck because they can still go to one of the few states that allows gay marriage and divorce. But these states often have their own additional rules. Massachusetts, for example, also has a 1 year residency requirement similar to Canada's.

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Remember when Dallas Judge Tena Callahan struck down the Texas gay marriage ban earlier this month?

Unfortunately, because she gave an oral decision, no  written decision was available to see what motivated the judge to rule the way she did.

But last week the judge spoke at a democratic organizitaiton dinner and explained her reasoning. John Wright of the Dallas Voice reported what she said:

“I was sitting at my dining room table and I was thinking, I’ve got to make this decision, I’ve got to rip this Band-Aid off and I’ve got to make this decision,” Callahan said, adding that she wasn’t struggling with the constitutional principle behind the ruling, but with the backlash she was sure to face.

“My dad always used to tell me that a billion people can believe in a bad idea, and it’s still a bad idea. And that man taught me to have the courage of my convictions and to do what’s right

— it’s always the right time to do the right thing. And as I’m sitting there and all this is going through my head, I’m looking at the back of this bag, and I went, ‘Oh my God, I just got my answer.’

“‘Let us have faith that right makes might,’” Callahan said, reading from the back of the bag, “and in that faith, let us to the end dare to do our duty as we understand it. — Abraham Lincoln.”

“I do my duty,” Callahan said. “That’s what you elected me to do.”
As Callahan concluded her brief remarks, fellow members of Stonewall Democrats of Dallas gave her a standing ovation, just as they had when she took the microphone.

The judge said that she wasn't allowed to talk about the specifics of the case. Still, she stressed that the purpose of the constitution is to protect minorities: "It’s not there to protect the majority. In a democracy, majority rules. Who needs the silly constitution when you’re ruling?"

While Judge Callahan's comments about the constitution may appeal to some, her ruling will still almost certainly be reversed on appeal.

Thanks to Michelle O'Neil, a Dallas family law attorney, for the tip.

[Photo credit: JOHN WRIGHT/Dallas Voice]

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Rosie O'Donnell and Kelli Carpenter were one of the most famous married gay couples. But as of Tuesday, they are couples no more. Rosie and Kelli live in New York, but married in California.

Their split shows many of the issues that come up during a same sex divorce.

Getting Divorced

Only a few states and countries allow gay marriage. So a lot of couples take a trip to get married out of state and then go back to where they live.

But if their marriage doesn't work out, they may have trouble getting divorced.

As an example, Emma Ruby-Sachs, an attorney with Ruby & Shiller, writes at the Huffington Post about what would happen for a hypotethical Montana couple that goes to Toronto to get married:

As a resident of Montana, you cannot get a divorce in Toronto. Toronto, like most states with the exception of Nevada and a few others, has a year-long residency requirement for a divorce. In Montana, your relationship was never legally any different from two roommates. And so, you must complete a divorce, with all its entanglements and difficulties, without the assistance of the law.

Because Rosie and Kelli live in New York, they'll be able to get divorced. Though New York doesn't allow gay marriages, they do recognize them from other states for the purpose of getting divorced.

Custody and Visitation Issues

Rosie and Kelli have three adopted children and one child born to Kelli through sperm donation. If Rosie and Kelli had lived in a state that disallowed second parent adoption, only Kelli would have legal rights to the child she gave birth to.

Without being the legal parent, Rosie's visitation rights to Kelli's child would also depend on what state they lived in. In Montana, for example, the highest court

that non-legal parents do have visitation and decision rights to a child from a same sex relationship.

Alimony

When married straight couples get divorced, one person often has to give the other person spousal support payments. That way the person with less income doesn't suffer an immediate drop in lifestyle. Along with spousal support, the person with more income would also have to give child support if the other person keeps custody of any children.

But if a same sex couple can't get divorced, then the person with lower income will lose these legal protections. It's possible, for example, that someone who left their job to take care of the house and family will not get any help from their ex-partner to help maintain his or her lifestyle.

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Gay couples in most states can't enter into a formal legal relationship, so instead they live together without one. Sometimes these relationships don't work out, and the couples break up.

There's plenty of laws about what happens to property and children when married couples get divorced. But here's what generally happens with gay couples without a legal relationship:

Type of Court

When married couples get divorced, any legal disputes they have are handled in a family court designed to handle those cases efficiently. Gay couples without a legal relationship instead must take their claims to a regular civil court. The civil court will treat their disputes as if they were two unrelated people with a property ownership disagreement.

The exception is if the couple has children. Then, a family court will handle visitation and custody rights.

Agreements

Written agreements: If the couple has a written agreement on how to divide the property, then a court will probably enforce it. The court will treat the couple as business partners, so the written agreement will probably be enforced even if it's unfair to one of the partners.

Also, things said in a will are not written agreements. The fact that one partner provided for her ex in her will does not mean that she has to provide for her ex upon breaking up.

Oral agreements: A court would probably enforce an oral agreement about how to divide property, but it's hard to prove that an oral agreement was made. So in reality, a court will likely not recognize it. Unfortunately, a lot of legally unrecognized gay couples rely on oral agreements because it may seem pessimistic to put in writing what happens if they break up.

Property

If the couple agrees how to divide up their property, then there's no need to go to court or file any papers. But watch out--if the couple has children, they shouldn't settle with a private agreement on custody and visitation. They should still get a court to formalize those things.

Joint ownership: Without an agreement saying otherwise, things owned jointly will be divided 50/50. This is true even if one partner paid a greater share of the property than the other. So, if one partner contributed 75% to the price of a jointly-owned house, a court would still probably declare 50/50 ownership. Or, if one partner contributed 75% of the funds in a joint checking account, a court would still assign 50/50 ownership.

Everything else: If there's no joint ownership or any other agreement saying anything special about ownership, then each partner will own 100% of their own property. So each partner will be entitled to 100% of their own bank accounts, real estate, and tangible property.

Alimony

Neither partner will be entitled to alimony payments from the other. Even if, like in many relationships, one partner chose not to work in order to take care of the home, that partner will still be out of luck.

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The Montana Supreme Court on Tuesday upheld the parental rights [PDF] of the non-biological parent of a separated lesbian couple.

What Happened

The couple had raised their child together for three years. Yet because Montana, like many states, doesn't let same sex couples adopt a child together, only one of two women legally adopted the child. After the couple separated, the woman who legally adopted the child said that letting her ex-partner have parental rights would interfere with her own constitutional right to parent her legal child.

The Court disagreed. Instead, the Court said that parental rights should be based on the existence of a parent-child relationship, which both women had.

Why It Matters

Because many states allow single, but not joint, gay adoption, the Montana decision could eventually impact the parental rights of non-legal parents in these other states. While none of these states has to follow what Montana does, their high courts may still be influenced by what the Montana Court said. However, the particular laws of each state will more affect those courts than decisions from other states.

Further, while in this case the child was adopted, the decision could also affect the rights of a non-biological parent in a same sex relationship with a biological one.

Even in Montana, however, the decision does not give the non-legal parent in a same sex relationship the same parental rights as the legal parent.

Instead of equal rights, the Montana decision said that the non-legal parent has only a "parental interest." Julie Shapiro, a professor at Seattle University Law School, points out that a "parental interest" is vague:

I’m not sure what that is or what it means. Is [the non-legal parent now] a legal parent? She has an equal voice in decision making, which suggests some equality with [the legal parent]. But it simply isn’t clear to me.

I expect further litigation in Montana or elsewhere about the limits of "parental interests" of non-legal parents.

Finally, be careful what you read. Some political blogs have mischaracterized the decision as treating non-legal parents equal to legal parents. Look at Queerty's post, for example, titled, "Montana Supreme Court's Amazing Adoption Decision: Gays Are Equal Under the Law." It's important not to treat every pro-gay decision as a proclamation of equality or as an advancement of gay rights, because the effects of these decisions are often much more limited.

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Surprise!

A judge in the conservative heartland of Texas struck down yesterday the state's constitutional ban on gay marriage.

But it's actually not so surprising. The judge, Tena Callahan of the 302nd Family District Court, is a Democrat, elected in 2006. Her decision doesn't represent a shift in cowboy thinking--rather, it's just the product of a recent left-leaning election.

And it won't mean anything for Texans. Michelle O'Neil, a Dallas attorney with over 18 years of family law experience, helps put things in perspective:

[T]he Dallas Court of Appeals is considered to be one of the most conservative courts in the State. Dominated by nine republican justices who are elected over a five county region consisting not only of Democrat-leaning Dallas County, but also uber-conservative Collin County and Grayson, Hunt, Rockwall and Kaufman counties. Likewise, the Texas Supreme Court is made up of justices mostly appointed by either Governor Perry or Bush and it is largely considered to be one of the most conservative groups of justices on the Court ever.

Although many will consider this ruling to be a win for the GLBT sector, based on the level of conservatism of the justices in line to hear this case, it is extremely doubtful that this ruling will last very long.

Because the case will be appealed, the Texas constitutional ban on gay marriage isn't going away anytime soon.

But while the opinion won't help gay couples in Texas, it still has two important effects:

1. Spotlights the issue.

The 302nd Family District Court of Texas does not nationally influence the law on gay marriage. Nevertheless, in less than 24 hours after the decision, national mainstream media outlets have covered the story, including the Associate Press, Reuters, and the Wall Street Journal. Evidence suggests that the more people talk about gay marriage, the more support it gets.

2. Shows a new way to challenge gay marriage bans.

Most states, like Texas, ban gay marriage. Lawsuits in these states challenging the bans outright usually fail.

But the Dallas case was unique because the person bringing the suit argued not for the right to get married, but for the right to get divorced. The judge ruled on a jurisdictional issue. She said that because the full faith and credit clause gives her court "jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction," the state ban on gay marriage that disallows her court from doing so must  violate the U.S. Constitution's equal protection clause.

Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.

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Daniel Clement, a divorce attorney that has practiced law for over 20 years, wrote about an upcoming New York law that prevents someone getting a divorce from financially sabotaging the soon-to-be ex-spouse:

In the past, many matrimonial actions got off to a particularly acrimonious start because one spouse was fearful that the other would transfer and hide assets, cancel insurance and run up debts as soon as they received notice of the divorce. As a result, one party had to go to the expense of making a motion to obtain an injunction preventing to the other spouse from acting financially irresponsibly. . . .

[The] new law makes the motion unnecessary. The law automatically enjoins parties from transferring property, relocating children, secreting assets, canceling insurance or running up debts.

So what will this mean for New York gay couples? Couples in a domestic partnership or civil union are out of luck. The automatic stay law will only apply to matrimonial actions:

• marriage annulments
• divorces
• separations
• declarations that a marriage is void
• proceedings about distribution of marital property after an out-of-state divorce

Not included: domestic partnership and civil union dissolutions.

However, the law will probably affect married gay couples getting a divorce. While New York doesn't offer gay marriage directly, the state does recognize marriages performed out of state. And just this year, a New York court granted a same sex divorce of a couple married somewhere else.

If gay couples married out of state can continue to get divorced in New York, the automatic stay law will apply to them. Their divorces will be matrimonial actions.

Daniel thinks that the benefits of the automatic stay law include "lowering the costs of litigation, protecting the parties, while lowering level of animosity." It's good to know that these benefits will help gay couples too.

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Repealing the Defense of Marriage Act is not just about equality--it's also about encouraging socially beneficial behavior in gay relationships.

Fred Silberberg, a Los Angeles attorney that has practiced family law for over 20 years, wrote in the Huffington Post about the unnoticed effects of the Defense of Marriage Act.

Specifically, he talked about a problem a male client was having with alimony payments to the client from the client's same sex ex-partner. Because the IRS doesn't recognize gay relationships, the alimony is not deductible. But if the client had been married to a woman, his wife would be able to deduct alimony payments she makes to him.

The government allows people to deduct alimony payments to encourage ex-spouses to make support payments. The deduction gives one spouse a financial incentive to support the other after a breakup. Fred writes:

It is the tax-deductibility aspect of spousal support that allows us, as lawyers, to try to come up with creative ways to address the issue if at all possible. We try to maximize the tax benefit and use it in a way that reduces overall income tax liability to maximize the dollars that exist to benefit the now-separated family.

The impact to Fred's client and his ex-partner was particularly large because their income levels were high enough that they were paying federal income tax at the maximum rate. Because his ex-partner has no tax incentive to make alimony payments, the client may not receive the support he needs to continue his lifestyle after the dissolution.

But deducting alimony payments is just one of the many income tax deductions available to married (and divorced) couples. These deductions encourage couples to do things that the government believes are good for each other and society in general.

Because the IRS doesn't recognize gay relationships, the government can't give the same encouragement to same sex couples. Repealing DOMA, then, would not just put same sex and opposite sex couples on an equal footing--it would also allow the government to use tax laws to encourage gay couples to make socially beneficial choices.

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Ben Stevens, a family law attorney in South Carolina, featured a guest post at his South Carolina Family Blog that listed five situations when a prenuptial agreement is necessary.

I'll add a sixth: same sex relationships.

Because while prenuptial agreements for married couples are helpful, for gay couples they are essential.

The story of a Minnesota domestic partnership dissolution in the Minneapolis-St. Paul Star Tribune provides a perfect example as to why:

It ended being a terribly, terribly messy thing. . .They kept sending us to this arbitration room and said, 'Just work it out.' Basically our lawyers just sat in a room [with a mediator] and talked about scenarios for about two years. In the end, I walked away with $10,000 of about a $135,000 house.

The couple’s experience shows that ending a domestic partnership without an agreement that says how property will be divided can be a long, expensive, draining process. Like many gay couples, these partners owned most of their property jointly, including their house, a checking account, and their two dogs.

Unable to take advantage of divorce proceedings, the couple divided their property through arbitration. But other domestic partnerships often end in lawsuits, which cost couples even more. Without alimony protection, one spouse may be forced to sue for support and equitable division of assets.

If the Minnesota couple had decided at the beginning of their relationship how their property would be divided if they broke up, they could have avoided a legal mess.

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