More on Same-Sex Relationships

The recent developments in the creation and recognition of relationships among same-sex couples have developed a momentum which, like it or not – the recent laws passed by 13 states banning gay marriage, notwithstanding – must be recognized and understood by family lawyers and other related practitioners in the areas of tax, estate planning, adoption, and other financial and interpersonal disciplines. See Wilson R: The Changing and Conflicting State of Same-Sex Marriage. The Matrimonial Strategist, November 2004.

Like a snowball gathering speed and mass as it rolls down the hill, the body of law regarding same-sex relationships is developing and becoming significantly more intertwined in the day-to-day practices of a wide variety of legal and financial practitioners. The inevitable conclusion appears to be that the same rights and responsibilities afforded to straight couples shall be afforded to gay couples.

Although it is still unfamiliar and uncertain, the more that the same-sex couple issue becomes a part of our cultural milieu, ie, as it becomes less the headline and more the article buried on the sixth page, the experience of practitioners and clients alike with the generation of new laws and developments that expand the perspective of “family” will become part of our daily routines and practices. The law, and developments in social policy that shape the law, have begun to recognize a swing of the social pendulum: that which is most important is the nurturance and structure of the familial relationship, not the gender of the persons involved in that relationship.

While some states have moved forward in grappling with these issues and some have moved backward, the federal government of the United States lags behind the cultural curve. This lagging is demonstrated by the enactment of the federal Defense of Marriage Act (DOMA) (1996), which both indicates that one state need not provide full faith and credit to same-sex marriages recognized in other states, and denies the recognition of said marriages by the federal government. Now, the federal government, and others, are debating the enactment of an amendment to the United States Constitution that would define marriage as a civil institution between a man and a woman, only. The motivation behind and constitutionality of these concepts may be debated for years to come, as DOMA has been debated since its enactment. While the debate rages on, however, the momentum continues.

Gender-Neutral Application of Laws

One of the most significant threshold issues to be determined faces many practitioners (and is the subject of cases recently accepted for hearing to the California Supreme Court): the gender-neutral application of laws. The cases presently being evaluated expand the borders of traditional thinking beyond the general and historical definitions of families. A recent California appellate decision determined that traditional paternity actions and presumptions affecting a determination of paternity could, and indeed must, be read in a gender neutral way so that parties in same-sex relationships might take advantage of, or be affected by, the presumptions traditionally reserved to more traditional roles, eg, men as fathers, women as mothers. Kristine Renee H. (Kristine Renee H. v. Lisa Ann R. (2004) 120 Cal. App. 4th 143). In a potentially shattering nod to the ever-expanding definition of “family,” the appellate court has turned the limited view of the application of law on its ear.

CA's Civil Union Law

Even more significant, is California's civil union law that takes effect in California on Jan. 1, 2005. The new law, known as AB 205 for the bill that brought it to life, provides to same-sex partners (and certain persons over the age of 62) the opportunity to achieve many, but not all, of the same rights that heterosexual couples may achieve when they marry. Many rights do not attach to the civil union relationship, eg, the right to file joint tax returns. In this regard, the separate but not-quite-equal extension of rights to same-sex couples has taken a giant step toward equal access to rights (human and civil) that heterosexual couples have had for hundreds of years.

The new law, Family Code section 297.5(a), states that “registered domestic partners shall have the same rights, protections, and benefits and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” As noted, the law does not apply only to same-sex partners. Furthermore, it inures automatically to the benefit/detriment of those already registered as domestic partners with the state (unless they opt out before 1/1/05). The new law also applies to certain couples that are over age 62 and qualify for certain Social Security benefits. In this regard, the objective of providing benefits to those persons “left behind” from the benefits of marriage might be included in the benefits provided by that civil institution, at least to some extent.

Minimizing the Conflict

The creation of this separate track of civil relationship, rather than simply incorporating those left out into the existing definition of marriage, creates the very difficult task of incorporating and cross-referencing so that the level of internal conflict between bodies of law (and the confusion and uncertainties in advising clients) might be minimized.

From this point on, these conflicts of laws, challenges to the separate but not-so-equal nature of the law, and discrimination issues must be addressed. As attorneys who support the equal application of the law without consideration of any religious or moral beliefs or applications, we must conclude that the exclusion of same-sex partnerships from the rights and obligations of marriage is a discriminatory and unequal application of the rights afforded by the Constitution.

The civil union laws of certain jurisdictions go far in providing equal protection under the law. The lack of equal access to federal laws, however, and the problems created by DOMA with regard to the recognition, by other jurisdictions, of marriage or other legal relationships between parties, raises other concerns about the infringement of constitutional rights, such as rights of privacy, the freedom of association and the related freedom to travel. All rights afforded to married persons, rights that married persons have taken for granted for generations, are still denied to same-sex couples, even as steps are being taken to provide partial inclusion.

As the ability to enter into legal relationships expands, many diverse areas of the law are affected, including tax, adoption, trust, estates — any laws that impact personal legal relationships. Consider, for example, that the income earned during the newly established partnership is the marital property of the parties (absent a pre-partnership agreement, which is available to domestic partners just as a prenuptial agreement is available to a marrying couple). Intestate succession and estate planning issues are raised. Substantial tax issues are raised. For example, joint tax filings are not permitted. The reporting of one half of the other partner's income as yours as under the community property laws may be required. The new structure, however, does not address the reporting requirements or required protocol. These are only some of many questions we attorneys may be unable to answer for our clients regarding their newly established rights and responsibilities.

Hundreds of hours have been spent in discussions, task forces, continuing education classes, and in our courthouses and legislative sessions, making efforts to cross -reference and incorporate the new laws into the variety of other areas affected. Although simply allowing same-sex couples to marry would have saved all of that time and effort, the social policy and will of the people has prevented that easier resolution, for the present.

How This Affects Family Practice

So as family law practitioners, how are we to address the issues? We must read the new laws as they develop and incorporate the substance into our advice and practices. We must, as professionals, accept the new world that is one of civil unions, including their limitations and uncertainties. Marital or community property will exist, and additional provisions of intestate succession will be part of same-sex relationships. Spousal support will be a right that inures to the benefit (or detriment) of domestic partners, and a child born to one of the partners during the partnership will be presumed to be the legal child of both partners.

Termination of the partnership will take on the same process as divorce. The new code sections in California provide for the process of dissolution, which involves the same application, form and substance, currently applied to the dissolution of marriage.

We must advise our clients of the pitfalls and the conflicts among laws, and ensure that they are advised of the inherent uncertainty in the process. This is the beginning of the legal arc. We will, no doubt, see testing in the courts and potential modifications in the legislation as the proverbial “kinks” are worked out. Many will face the uncertainty of inter-jurisdictional moves. For example, the idea of quasi-community property that applies in California (property acquired elsewhere that, if acquired in California, would have been community property), may not apply in domestic partnership cases where the parties move to a state that does not have California's broad reaching rule of law.

We are also faced with the status of true “marriages” of same-sex partners that are taking place in Massachusetts and Canada. It is problematic that a legally married person in Massachusetts loses his or her “married” status by virtue of a move to another state. Even with the new law, California, for example, would not recognize the marriage of a same-sex couple married in Massachusetts. What are the rights of couples who travel between jurisdictions, eg, when a married same-sex couple from Massachusetts moves to California and registers under the domestic partner process in California? Does their Massachusetts status get grandfathered in? Most likely the answer is “no.”

The consequences of this answer will, sooner rather than later, require the determination by the U.S. Supreme Court of the constitutionality, and legality, of denying same-sex couples the same rights and obligations as heterosexual couples are provided.

An amendment to the U.S. Constitution has been proposed, which defines marriage as that union only between a man and a woman. No matter what the motivation, when distilled to its simplest form, this definition constitutes gender discrimination and unequal protection. A man may marry a woman, but not a man – the distinction being one of gender alone. A same-sex couple may have a civil union or domestic partnership, according to a few of our jurisdictions, but not a marriage. This is a distinction without a difference, unless one considers the more than 1100 rights that a marriage provides but that civil union or domestic partnership does not afford to the couples entering into those separate but not-so-equal partnerships.

We must advise our clients in this time of uncertainty – as anxious as that may make the family law practitioner. The new reality is upon us, and to ignore this new population seeking our services is a bad business decision and ignores a demographic that will have an increasing need of our services. We are also presented with opportunities to involve ourselves in the legislative process. No matter what the motivation, and no matter what the agenda, this is a chance to shape and work with the next great dynamic of family law and to define the structure of the family unit.

The recent developments in the creation and recognition of relationships among same-sex couples have developed a momentum which, like it or not – the recent laws passed by 13 states banning gay marriage, notwithstanding – must be recognized and understood by family lawyers and other related practitioners in the areas of tax, estate planning, adoption, and other financial and interpersonal disciplines. See Wilson R: The Changing and Conflicting State of Same-Sex Marriage. The Matrimonial Strategist, November 2004.

Like a snowball gathering speed and mass as it rolls down the hill, the body of law regarding same-sex relationships is developing and becoming significantly more intertwined in the day-to-day practices of a wide variety of legal and financial practitioners. The inevitable conclusion appears to be that the same rights and responsibilities afforded to straight couples shall be afforded to gay couples.

Although it is still unfamiliar and uncertain, the more that the same-sex couple issue becomes a part of our cultural milieu, ie, as it becomes less the headline and more the article buried on the sixth page, the experience of practitioners and clients alike with the generation of new laws and developments that expand the perspective of “family” will become part of our daily routines and practices. The law, and developments in social policy that shape the law, have begun to recognize a swing of the social pendulum: that which is most important is the nurturance and structure of the familial relationship, not the gender of the persons involved in that relationship.

While some states have moved forward in grappling with these issues and some have moved backward, the federal government of the United States lags behind the cultural curve. This lagging is demonstrated by the enactment of the federal Defense of Marriage Act (DOMA) (1996), which both indicates that one state need not provide full faith and credit to same-sex marriages recognized in other states, and denies the recognition of said marriages by the federal government. Now, the federal government, and others, are debating the enactment of an amendment to the United States Constitution that would define marriage as a civil institution between a man and a woman, only. The motivation behind and constitutionality of these concepts may be debated for years to come, as DOMA has been debated since its enactment. While the debate rages on, however, the momentum continues.

Gender-Neutral Application of Laws

One of the most significant threshold issues to be determined faces many practitioners (and is the subject of cases recently accepted for hearing to the California Supreme Court): the gender-neutral application of laws. The cases presently being evaluated expand the borders of traditional thinking beyond the general and historical definitions of families. A recent California appellate decision determined that traditional paternity actions and presumptions affecting a determination of paternity could, and indeed must, be read in a gender neutral way so that parties in same-sex relationships might take advantage of, or be affected by, the presumptions traditionally reserved to more traditional roles, eg, men as fathers, women as mothers. Kristine Renee H. (Kristine Renee H. v. Lisa Ann R. (2004) 120 Cal. App. 4th 143). In a potentially shattering nod to the ever-expanding definition of “family,” the appellate court has turned the limited view of the application of law on its ear.

CA's Civil Union Law

Even more significant, is California's civil union law that takes effect in California on Jan. 1, 2005. The new law, known as AB 205 for the bill that brought it to life, provides to same-sex partners (and certain persons over the age of 62) the opportunity to achieve many, but not all, of the same rights that heterosexual couples may achieve when they marry. Many rights do not attach to the civil union relationship, eg, the right to file joint tax returns. In this regard, the separate but not-quite-equal extension of rights to same-sex couples has taken a giant step toward equal access to rights (human and civil) that heterosexual couples have had for hundreds of years.

The new law, Family Code section 297.5(a), states that “registered domestic partners shall have the same rights, protections, and benefits and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” As noted, the law does not apply only to same-sex partners. Furthermore, it inures automatically to the benefit/detriment of those already registered as domestic partners with the state (unless they opt out before 1/1/05). The new law also applies to certain couples that are over age 62 and qualify for certain Social Security benefits. In this regard, the objective of providing benefits to those persons “left behind” from the benefits of marriage might be included in the benefits provided by that civil institution, at least to some extent.

Minimizing the Conflict

The creation of this separate track of civil relationship, rather than simply incorporating those left out into the existing definition of marriage, creates the very difficult task of incorporating and cross-referencing so that the level of internal conflict between bodies of law (and the confusion and uncertainties in advising clients) might be minimized.

From this point on, these conflicts of laws, challenges to the separate but not-so-equal nature of the law, and discrimination issues must be addressed. As attorneys who support the equal application of the law without consideration of any religious or moral beliefs or applications, we must conclude that the exclusion of same-sex partnerships from the rights and obligations of marriage is a discriminatory and unequal application of the rights afforded by the Constitution.

The civil union laws of certain jurisdictions go far in providing equal protection under the law. The lack of equal access to federal laws, however, and the problems created by DOMA with regard to the recognition, by other jurisdictions, of marriage or other legal relationships between parties, raises other concerns about the infringement of constitutional rights, such as rights of privacy, the freedom of association and the related freedom to travel. All rights afforded to married persons, rights that married persons have taken for granted for generations, are still denied to same-sex couples, even as steps are being taken to provide partial inclusion.

As the ability to enter into legal relationships expands, many diverse areas of the law are affected, including tax, adoption, trust, estates — any laws that impact personal legal relationships. Consider, for example, that the income earned during the newly established partnership is the marital property of the parties (absent a pre-partnership agreement, which is available to domestic partners just as a prenuptial agreement is available to a marrying couple). Intestate succession and estate planning issues are raised. Substantial tax issues are raised. For example, joint tax filings are not permitted. The reporting of one half of the other partner's income as yours as under the community property laws may be required. The new structure, however, does not address the reporting requirements or required protocol. These are only some of many questions we attorneys may be unable to answer for our clients regarding their newly established rights and responsibilities.

Hundreds of hours have been spent in discussions, task forces, continuing education classes, and in our courthouses and legislative sessions, making efforts to cross -reference and incorporate the new laws into the variety of other areas affected. Although simply allowing same-sex couples to marry would have saved all of that time and effort, the social policy and will of the people has prevented that easier resolution, for the present.

How This Affects Family Practice

So as family law practitioners, how are we to address the issues? We must read the new laws as they develop and incorporate the substance into our advice and practices. We must, as professionals, accept the new world that is one of civil unions, including their limitations and uncertainties. Marital or community property will exist, and additional provisions of intestate succession will be part of same-sex relationships. Spousal support will be a right that inures to the benefit (or detriment) of domestic partners, and a child born to one of the partners during the partnership will be presumed to be the legal child of both partners.

Termination of the partnership will take on the same process as divorce. The new code sections in California provide for the process of dissolution, which involves the same application, form and substance, currently applied to the dissolution of marriage.

We must advise our clients of the pitfalls and the conflicts among laws, and ensure that they are advised of the inherent uncertainty in the process. This is the beginning of the legal arc. We will, no doubt, see testing in the courts and potential modifications in the legislation as the proverbial “kinks” are worked out. Many will face the uncertainty of inter-jurisdictional moves. For example, the idea of quasi-community property that applies in California (property acquired elsewhere that, if acquired in California, would have been community property), may not apply in domestic partnership cases where the parties move to a state that does not have California's broad reaching rule of law.

We are also faced with the status of true “marriages” of same-sex partners that are taking place in Massachusetts and Canada. It is problematic that a legally married person in Massachusetts loses his or her “married” status by virtue of a move to another state. Even with the new law, California, for example, would not recognize the marriage of a same-sex couple married in Massachusetts. What are the rights of couples who travel between jurisdictions, eg, when a married same-sex couple from Massachusetts moves to California and registers under the domestic partner process in California? Does their Massachusetts status get grandfathered in? Most likely the answer is “no.”

The consequences of this answer will, sooner rather than later, require the determination by the U.S. Supreme Court of the constitutionality, and legality, of denying same-sex couples the same rights and obligations as heterosexual couples are provided.

An amendment to the U.S. Constitution has been proposed, which defines marriage as that union only between a man and a woman. No matter what the motivation, when distilled to its simplest form, this definition constitutes gender discrimination and unequal protection. A man may marry a woman, but not a man – the distinction being one of gender alone. A same-sex couple may have a civil union or domestic partnership, according to a few of our jurisdictions, but not a marriage. This is a distinction without a difference, unless one considers the more than 1100 rights that a marriage provides but that civil union or domestic partnership does not afford to the couples entering into those separate but not-so-equal partnerships.

We must advise our clients in this time of uncertainty – as anxious as that may make the family law practitioner. The new reality is upon us, and to ignore this new population seeking our services is a bad business decision and ignores a demographic that will have an increasing need of our services. We are also presented with opportunities to involve ourselves in the legislative process. No matter what the motivation, and no matter what the agenda, this is a chance to shape and work with the next great dynamic of family law and to define the structure of the family unit.