Same-Sex Unions: Marriage Equality Is Not Here Yet

By contrast, Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 88 (Ct. App. 2006), a Virginia case also involving a child created by artificial insemination and a female couple that had obtained a Vermont civil union, the parental rights of the non-biological mother, Janet, were vindicated only because of a tactical blunder by the biological mother, Lisa.

Specifically, Lisa, who was by then residing in Virginia alone with the child, first sought dissolution of the civil union and a custody-and-visitation order in Vermont, where the parties had resided together with the child until two months earlier. By the time Lisa commenced an action in Virginia, on the very day on which Virginia's state DOMA became effective, seeking a declaratory judgment that she was the “sole parent” of the child and that any parental rights claimed by Janet were “nugatory, void, illegal and unenforceable,” the Vermont court had already issued a temporary custody order granting Janet visitation.

Accordingly, the Virginia court dismissed Lisa's action for lack of subject-matter jurisdiction, based on the provisions of the federal Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. ' 1738A, which requires the courts in any state to defer to a pre-existing custody proceeding in another state, so long as the proceeding in the foreign court meets certain jurisdictional requirements.

Otherwise, the state DOMA, Va. Const. Art. I, ' 15-A, which forbids the state or any of its subdivisions to “create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effects of marriage” would presumably have dictated a result in Lisa's favor.

To ensure the portability of the parentage of a same-sex spouse who is not the birth mother, the non-birth mother should adopt the child. This creates a problem, since the non-birth mother is already the child's legal parent under New York law. But in a case involving a same-sex couple that had legally married in the Netherlands and was residing in New York, New York County Surrogate Court Judge Kristin Booth Glen resolved such a conundrum in favor of the non-birth mother. (The terms “biological mother” and “non-biological mother,” used supra, are not adequate for the facts of this case, in which ova of one female spouse were fertilized in vitro with donated sperm and then implanted in the womb of the other female spouse, who carried the resulting embryo to term. The birth certificate issued by the New York City Department of Health and Mental Hygiene named only the birth mother as a parent.) To safeguard the non-birth mother's status as legal parent in light of DOMA and the State DOMAs, the court determined that “although ' an adoption should be unnecessary, because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid [the birth mother] and Mona [whose embryo was fertilized and implanted in Ingrid] as his legal parents throughout the entire United States.” Adoption of Sebastian, 25 Misc.3d 567, 587 (Surr. Ct. N.Y. Co. 2009).

The foregoing reasoning was clearly premised on a strong presumption that U.S. courts will give full faith and credit to adoptions granted by a court in any state. And, indeed, the passage of DOMA and the various state DOMAs does not appear to have weakened that presumption. See Adar v. Smith, 597 F.3d 697 (5th Cir. 2010), rev'd, 639 F.3d 146 (5th Cir. 2011) (en banc) (affirming order directing Louisiana state registrar to issue birth certificate naming as parents of child in question the same-sex couple who adopted Louisiana-born child in New York, because New York adoption was entitled to full faith and credit in Louisiana, notwithstanding Louisiana statute prohibiting adoptions by unmarried couples, followed by an en banc reversal on other grounds; the full Fifth Circuit left undisturbed the prior holding that the New York adoption was entitled to full faith and credit in Louisiana); Embry v. Ryan, 11 So.3d 408, 410 (Fla. Dist. Ct. App. 2009) (citing ' 63.192, Fla. Stat.) (Florida statutory law required the court below to give full faith and credit to Washington state adoption by a woman of her same-sex partner's biological child, “regardless of whether [it] believed that the Washington adoption violated a clearly established public policy in Florida”).

Divorce

The courts of many states, primarily those that have adopted state DOMAs, are likely to refuse to adjudicate divorces between same-sex couples, denying them access to the courts to obtain a definitive and, one hopes, fair determination of their respective rights and duties going forward.

In Marriage of J.B. and H.B., 326 S.W.3d 654 (Ct. App. 2010), the Texas Court of Appeals held that Texas courts lack divorce jurisdiction with respect to same-sex marriages, citing the state DOMA. That law declares, inter alia, that same-sex marriages and civil unions are “contrary to the public policy of this state and ' void in this state,” and it forbids the state or any subdivision thereof to give effect to “a marriage between persons of the same sex” or any “right or claim to any legal protection, benefit or responsibility asserted” based on a same-sex marriage or a civil union. See Tex. Fam. Code Ann. 6.204(b)-(c).

The court explained that “in this very case appellee seeks to 'give effect' to his marriage under Texas law by seeking a division of the parties' community property ' . Community property is a paradigmatic legal benefit that is associated intimately and solely with marriage.”

Georgia's state DOMA expressly denies to its courts divorce jurisdiction with respect to same-sex marriages. Art. I, ' IV. Par. I, Ga. Const. And no divorce means no court order with respect to issues such as property division, child custody, visitation, spousal and child support, with potentially resultant chaos in the wake of the termination of the marriage.

Coping with the Uncertainty

New York law contains some features that may be helpful in promoting equitable results in the event that a same-sex marriage ends in divorce.

The factors upon which “equitable,” as opposed to “equal,” property distribution is based (DRL ' 236(B)(5)(d)) may be sufficiently flexible to allow the court to take into account and compensate for the countless deprivations faced by the same-sex spouse. These include ineligibility to succeed a deceased spouse as beneficiary of a defined-benefit pension plan; to receive a portion of a spouse's pension benefits and to do so tax-free; as part of the division of property in a divorce, to receive Social Security payments based on the work history of a spouse (see 42 U.S.C.A. ' 402(b)-(c)); or to receive COBRA benefits to ensure continued medical coverage for a spouse who has relied on family coverage obtained through the other spouse's employer (see 29 U.S.C.A. ” 1161-63).

The 2010 legislation that authorized “no fault” divorce in New York also, inter alia, added to the factors to be considered in determining spousal maintenance “the existence and duration of a premarital joint household.” DRL ' 236(B)(6)(a)(6) (emphasis added). Because same-sex couples were barred from marrying for so long, many same-sex marriages were, or will have been, preceded by long-term joint-living arrangements in which the contributions of the respective spouses might merit more or less generous treatment with respect to maintenance or equitable distribution.

Prenuptial (or postnuptial) agreements provide a means by which, with sufficient forethought, parties to a same-sex marriage may chart out their own financial futures while at the same time protecting themselves from the vagaries of the present highly uncertain legal environment. For example, the parties might agree that, no matter where they reside in the future, any financial issues in a divorce will be decided in accordance with New York law, except as to matters where the parties have specifically agreed to depart from it. Such departures could include: provisions for property division to be controlled by title; entitling each spouse to a specified percentage of all marital assets; or including premarital assets in the marital pot, to be divided in the event of divorce.

A prenuptial agreement could also delineate the parties' understandings and agreements as to their rights and obligations vis-'-vis their children, even though the courts would still, as parens patriae, have the last word on custody and child support. Or the agreement might simply set forth rules of decision that mirror those of New York law, except where the parties might opt for a distinctly different path.

An agreement could provide that neither spouse would move to a state with a state DOMA without the written consent of the other spouse, or that, if they are residing in a state that will not grant divorces to same-sex couples, they will take certain specified steps to entitle them to invoke the divorce jurisdiction of New York, or of another specified state that will adjudicate their divorce. It could also include an exchange of health-care proxies and durable powers of attorney, or specify financial devices that will be employed to ameliorate the effects of DOMA and other non-recognition statutes on one spouse or the other.

If the parties previously obtained a civil union, the agreement should specify whether the parties will dissolve or maintain the civil union, whose continuation may provide various advantages or disadvantages, if the applicable state law permits marriage and civil union to coexist. At the same time, same-sex married couples may want from a prenuptial agreement the same thing that heterosexual couples want: a roadmap to the future that suits them, protecting their interests in areas where they feel vulnerable or fear exploitation.

Conclusion

Advocates of marriage equality have made remarkable breakthroughs in recent years in the courts, in state legislatures and, most important, in public opinion. But, as this article shows, same-sex married couples must inform themselves about the myriad gaps in their legal rights and exercise due diligence in planning their lives together.

Harriet Newman Cohen and Bonnie E. Rabin are partners, and Tim James is an associate, at Cohen Rabin Stine Schumann. Ms. Rabin represented the petitioner in Debra H. v. Janice R., a case discussed herein. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Parentage and Custody

New York law provides that, when a married woman is artificially inseminated with the written consent of both spouses, the resulting child is the legal child of the spouse as well. DRL ' 73. (The statute confers legal parenthood in this manner on the “husband” of the inseminated woman, but the newly enacted DRL ' 10-A requires statutes relating to marriage to be read in a gender-neutral manner.)

But non-recognition states likely will not recognize the parentage of the non-biological mother based on a same-sex marriage. In Debra H. v. Janice R. , 14 NY3d 576 (2010), New York's Court of Appeals recognized the parentage of the non-biological mother in a same-sex couple, based on the legal effect under Vermont law of the parties' Vermont civil union, but New York, of course, had not enacted a state DOMA. (Many state DOMAs go beyond barring recognition of same-sex marriages performed under the law of other jurisdictions, and prohibit recognition of civil unions or other relationships that confer marriage-like benefits. See, e.g., Va. Const. Art. I,
' 15-A; Ohio Const. XV Sec. 11; Utah Const.. Art. I, ' 29; Tex. Fam. Code Ann ' 6.204.)

By contrast, Miller-Jenkins v. Miller-Jenkins , 49 Va. App. 88 (Ct. App. 2006), a Virginia case also involving a child created by artificial insemination and a female couple that had obtained a Vermont civil union, the parental rights of the non-biological mother, Janet, were vindicated only because of a tactical blunder by the biological mother, Lisa.

Specifically, Lisa, who was by then residing in Virginia alone with the child, first sought dissolution of the civil union and a custody-and-visitation order in Vermont, where the parties had resided together with the child until two months earlier. By the time Lisa commenced an action in Virginia, on the very day on which Virginia's state DOMA became effective, seeking a declaratory judgment that she was the “sole parent” of the child and that any parental rights claimed by Janet were “nugatory, void, illegal and unenforceable,” the Vermont court had already issued a temporary custody order granting Janet visitation.

Accordingly, the Virginia court dismissed Lisa's action for lack of subject-matter jurisdiction, based on the provisions of the federal Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. ' 1738A, which requires the courts in any state to defer to a pre-existing custody proceeding in another state, so long as the proceeding in the foreign court meets certain jurisdictional requirements.

Otherwise, the state DOMA, Va. Const. Art. I, ' 15-A, which forbids the state or any of its subdivisions to “create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effects of marriage” would presumably have dictated a result in Lisa's favor.

To ensure the portability of the parentage of a same-sex spouse who is not the birth mother, the non-birth mother should adopt the child. This creates a problem, since the non-birth mother is already the child's legal parent under New York law. But in a case involving a same-sex couple that had legally married in the Netherlands and was residing in New York, New York County Surrogate Court Judge Kristin Booth Glen resolved such a conundrum in favor of the non-birth mother. (The terms “biological mother” and “non-biological mother,” used supra, are not adequate for the facts of this case, in which ova of one female spouse were fertilized in vitro with donated sperm and then implanted in the womb of the other female spouse, who carried the resulting embryo to term. The birth certificate issued by the New York City Department of Health and Mental Hygiene named only the birth mother as a parent.) To safeguard the non-birth mother's status as legal parent in light of DOMA and the State DOMAs, the court determined that “although ' an adoption should be unnecessary, because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid [the birth mother] and Mona [whose embryo was fertilized and implanted in Ingrid] as his legal parents throughout the entire United States.” Adoption of Sebastian, 25 Misc.3d 567, 587 (Surr. Ct. N.Y. Co. 2009).

The foregoing reasoning was clearly premised on a strong presumption that U.S. courts will give full faith and credit to adoptions granted by a court in any state. And, indeed, the passage of DOMA and the various state DOMAs does not appear to have weakened that presumption. See Adar v. Smith , 597 F.3d 697 (5th Cir. 2010), rev'd, 639 F.3d 146 (5th Cir. 2011) ( en banc ) (affirming order directing Louisiana state registrar to issue birth certificate naming as parents of child in question the same-sex couple who adopted Louisiana-born child in New York, because New York adoption was entitled to full faith and credit in Louisiana, notwithstanding Louisiana statute prohibiting adoptions by unmarried couples, followed by an en banc reversal on other grounds; the full Fifth Circuit left undisturbed the prior holding that the New York adoption was entitled to full faith and credit in Louisiana); Embry v. Ryan , 11 So.3d 408, 410 (Fla. Dist. Ct. App. 2009) (citing ' 63.192, Fla. Stat.) (Florida statutory law required the court below to give full faith and credit to Washington state adoption by a woman of her same-sex partner's biological child, “regardless of whether [it] believed that the Washington adoption violated a clearly established public policy in Florida”).

Divorce

The courts of many states, primarily those that have adopted state DOMAs, are likely to refuse to adjudicate divorces between same-sex couples, denying them access to the courts to obtain a definitive and, one hopes, fair determination of their respective rights and duties going forward.

In Marriage of J.B. and H.B., 326 S.W.3d 654 (Ct. App. 2010), the Texas Court of Appeals held that Texas courts lack divorce jurisdiction with respect to same-sex marriages, citing the state DOMA. That law declares, inter alia, that same-sex marriages and civil unions are “contrary to the public policy of this state and ' void in this state,” and it forbids the state or any subdivision thereof to give effect to “a marriage between persons of the same sex” or any “right or claim to any legal protection, benefit or responsibility asserted” based on a same-sex marriage or a civil union. See Tex. Fam. Code Ann. 6.204(b)-(c).

The court explained that “in this very case appellee seeks to 'give effect' to his marriage under Texas law by seeking a division of the parties' community property ' . Community property is a paradigmatic legal benefit that is associated intimately and solely with marriage.”

Georgia's state DOMA expressly denies to its courts divorce jurisdiction with respect to same-sex marriages. Art. I, ' IV. Par. I, Ga. Const. And no divorce means no court order with respect to issues such as property division, child custody, visitation, spousal and child support, with potentially resultant chaos in the wake of the termination of the marriage.

Coping with the Uncertainty

New York law contains some features that may be helpful in promoting equitable results in the event that a same-sex marriage ends in divorce.

The factors upon which “equitable,” as opposed to “equal,” property distribution is based (DRL ' 236(B)(5)(d)) may be sufficiently flexible to allow the court to take into account and compensate for the countless deprivations faced by the same-sex spouse. These include ineligibility to succeed a deceased spouse as beneficiary of a defined-benefit pension plan; to receive a portion of a spouse's pension benefits and to do so tax-free; as part of the division of property in a divorce, to receive Social Security payments based on the work history of a spouse (see 42 U.S.C.A. ' 402(b)-(c)); or to receive COBRA benefits to ensure continued medical coverage for a spouse who has relied on family coverage obtained through the other spouse's employer (see 29 U.S.C.A. ” 1161-63).

The 2010 legislation that authorized “no fault” divorce in New York also, inter alia, added to the factors to be considered in determining spousal maintenance “the existence and duration of a premarital joint household.” DRL ' 236(B)(6)(a)(6) (emphasis added). Because same-sex couples were barred from marrying for so long, many same-sex marriages were, or will have been, preceded by long-term joint-living arrangements in which the contributions of the respective spouses might merit more or less generous treatment with respect to maintenance or equitable distribution.

Prenuptial (or postnuptial) agreements provide a means by which, with sufficient forethought, parties to a same-sex marriage may chart out their own financial futures while at the same time protecting themselves from the vagaries of the present highly uncertain legal environment. For example, the parties might agree that, no matter where they reside in the future, any financial issues in a divorce will be decided in accordance with New York law, except as to matters where the parties have specifically agreed to depart from it. Such departures could include: provisions for property division to be controlled by title; entitling each spouse to a specified percentage of all marital assets; or including premarital assets in the marital pot, to be divided in the event of divorce.

A prenuptial agreement could also delineate the parties' understandings and agreements as to their rights and obligations vis-'-vis their children, even though the courts would still, as parens patriae, have the last word on custody and child support. Or the agreement might simply set forth rules of decision that mirror those of New York law, except where the parties might opt for a distinctly different path.

An agreement could provide that neither spouse would move to a state with a state DOMA without the written consent of the other spouse, or that, if they are residing in a state that will not grant divorces to same-sex couples, they will take certain specified steps to entitle them to invoke the divorce jurisdiction of New York, or of another specified state that will adjudicate their divorce. It could also include an exchange of health-care proxies and durable powers of attorney, or specify financial devices that will be employed to ameliorate the effects of DOMA and other non-recognition statutes on one spouse or the other.

If the parties previously obtained a civil union, the agreement should specify whether the parties will dissolve or maintain the civil union, whose continuation may provide various advantages or disadvantages, if the applicable state law permits marriage and civil union to coexist. At the same time, same-sex married couples may want from a prenuptial agreement the same thing that heterosexual couples want: a roadmap to the future that suits them, protecting their interests in areas where they feel vulnerable or fear exploitation.

Conclusion

Advocates of marriage equality have made remarkable breakthroughs in recent years in the courts, in state legislatures and, most important, in public opinion. But, as this article shows, same-sex married couples must inform themselves about the myriad gaps in their legal rights and exercise due diligence in planning their lives together.

Harriet Newman Cohen and Bonnie E. Rabin are partners, and Tim James is an associate, at Cohen Rabin Stine Schumann. Ms. Rabin represented the petitioner in Debra H. v. Janice R., a case discussed herein. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.