FOUR IMPORTANT TIPS FOR SAME-SEX MARRIAGES

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Having a successful marriage is a difficult proposition at best.  Marriages can be filled with the same duality of ups and downs that we face as individuals going through life.  Gay marriages offer the same pendulum of give and take, compromise and communication as their heterosexual counterpart, but they too more often than not end up in divorce.  And same-sex divorces might be even tougher these days than the marriage themselves.

This is due in large part to the fact that gay marriage is legal in only thirteen (13) states in our union and the District of Columbia.  So if a same-sex couple lives in one of the other 37 states, and wants to marry, they have to go to DC or one of the legal 13 to marry, then they return to their home state to live happily ever after, right?  Well, it’s not always that simple.  Many times, these couples face the realities of a marriage gone awry, and the parties decide to part and go their own ways.  But how do they divorce legally since their state doesn’t even recognize their marriage as being legal in the first place?

Thousands of couples potentially face this issue right now.  To obtain a divorce they would need to go back to a state that recognizes their legal right to marry and then establish legal residency there.  Or the state might impose other onerous requirements for their divorce.

Recent statistics indicate that same-sex couples divorce at half the rate that heterosexual couples divorce.  That figure is expected to rise as more gay couples seek divorce, and the states’ laws likely catch up with that rise.

The key to all this is to be smart.  And here’s four tips on how to be smart regarding same-sex marriages and divorce:

1) Before marriage, consult an experienced family law attorney When it comes to marriage and divorce, whether same-sex or heterosexual, there truly is nothing more important than a professional who is looking out for your best interests. Certified family law specialists are just that: family law specialists. Find one who can handle complex issues like estate planning and custody. There are also organizations such as Lambda Legal and the National Center for Lesbian Rights who can provide information.

2)      Consider creating a pre-nuptial (or a postnup, which is recognized in most states) agreement.  A written agreement between wedding parties can be important to help detail ownership of assets accrued by and between the parties during their relationship.  The truth is, all money and property issues can be settled without the need of a court or a judge.  All the parties have to do is sit down and agree to who owns what and who gets what in case of a split.  Such agreements are legally recognized in every state.  And even if the state you’re living in doesn’t recognize same-sex marriages, ancillary matters such as financial issues can be settled which would allow the parties to move forward while awaiting the legal drama of their divorce to play out.

3)      If possible marry in one of the states or other jurisdictions that grant divorces without onerous residency requirements.  California is one of those states.  So are Minnesota, Delaware, and Washington D.C.

4) Regarding potential child custody issues, if either party should have a child during wedlock, the non-biological parent might consider legally adopting the child at the time of birth. Even if the same-sex marriage is not legally recognized by that state, the state will recognize the legality of the adoption.

Again, as in any legally binding relationship, homework and due diligence are important.  Know what you’re doing before you enter into legally binding contracts such as marriage.  Consult with a family law specialist.  Know the laws of the states you’re dealing with.  Be smart.  And build a legally and fundamentally strong foundation that will bring peace to you and your soon-to-be family.

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5 HELPFUL TIPS FOR SAME-SEX COUPLES WHO MARRY (or divorce)

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Did you know that there are now eleven (11) states across our union that have fully legalized same-sex marriage?  And – the United States Supreme Court has recently agreed to hear two very important test cases regarding the Defense of Marriage Act (DOMA) and Proposition 8 in California.  This all seems highly likely to result in even more same-sex couples marrying, and then divorcing.

Thus, it is important to understand that although the gay marriage laws in the U.S. change from state to state, divorce remains the same.  So it might be a good idea for any couples out there who are contemplating same-sex marriage to remember to do a few things first.  After all, prevention is the best medicine.

The five helpful tips for same-sex couples who want to marry are:

(1)  You might want to first think about generating a prenuptial agreement that would act to define any and all rights for both parties in case of divorce or death.  This could help keep both of you out of court to resolve property and other issues, regardless of whether that state recognizes same-sex marriages or not.

(2)  Make yourself aware of the recent state of the law regarding marriages in your state.  If you and your partner are planning on moving to another state after your marriage, then you’re going to want to know the marriage laws of that state as well.  There might be obstacles to what you’re trying to accomplish.  No two state’s laws are exactly the same, so you need to do your homework.

(3)  Find out whether the laws on child custody in your new state will somehow impact your rights to have access to your child in case of divorce if only one parent is the natural parent or if only one parent adopts the child.  Any future visitation and/or custody rights between you and your child could prove dependent upon such laws.

Remember that even though some of the states allow for same-sex marriages, while others offer civil unions or domestic partnerships, more than half of the U.S. does not allow same-sex marriage.  And most of these states don’t even recognize legal unions that might be recognized elsewhere.

(4)  Should you and your spouse move to a state that recognizes same-sex marriages, yet the relationship fails, then you should take the diligent precautions necessary to prepare for your divorce.  Conduct the appropriate research to find a respected family law attorney who fulfills your specific needs.  Expertise, experience, and reputation within the community are critical attributes for any good family law attorney.

In preparation for any potential relationship split, do whatever is necessary to secure all your financial records.  Make copies of anything you might consider important to your divorce.  Covering all income, expenses, assets, and debts could be crucial to saving time and money during the division of any property.  Your lawyer will thank you for doing this.  Also, make sure to preserve any cohabitation or other written agreements that may be used to prove your legal intentions.

(5)  It might also be a good idea to agree to the rights of both parties regarding visitation and/custody should any children be born or adopted into the relationship.  You’ll want to keep track of the amount of time you spend on your own with the child.  Make a diary of all that you have done for the child; any contributions or decisions you have been involved in on their behalf.  In some states, this could prove handy when seeking visitation or custody rights with the child.

In all, divorce is never an easy process.  Same-sex couples, like all couples, need to do the research before marrying and before filing for divorce.  This promises to help reduce the stress and expense that such a family law battle would most surely produce in family law court in any state.

DOMESTIC PARTNERSHIP AND SAME-SEX MARRIAGE AFFECTED BY CHANGES TO CALIFORNIA LAW

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The areas of domestic partnership and same sex marriage could not escape the recent modification of California’s legal codes.  Specifically, registration and dissolution were affected by the new legislation known as SB 651.  This new law amended two family law sections and added two more to remove the requirement that domestic partners have a common residence to register, permits establishment of a confidential domestic partnership, and permits same-sex spouses who married in California to petition for dissolution in California without the parties meeting regular residency requirements if neither spouse resides in a jurisdiction that will dissolve the marriage.

Existing law provides that two unmarried, unrelated adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring may establish a domestic partnership by filing a declaration with the Secretary of State if certain requirements are met, including that both persons have a common residence and that both persons are at least 18 years of age.  The law also authorizes two unmarried persons, who are not minors and who have been living together as husband and wife to obtain a confidential marriage license, if certain requirements are met.

SB 651 acts to eliminate the requirements that domestic partners have a common residence.  It also permits a person who is under 18 years of age who otherwise meets the requirements for establishing a domestic partnership to do so on obtaining a court order that provides that authority to the underage person.  This recent legislation also provides for the consent of the underage person’s parent or guardian, except under prescribed circumstances, and requires that the court order and the written consent be filed with the court clerk and submitted to the Secretary of State with a Declaration of Domestic Partnership.  The bill also requires the Secretary of State to establish a process by which two persons could enter into a confidential domestic partnership and maintain each confidential Declaration of Domestic Partnership, and permits the Secretary of State to charge a reasonable fee for this service.

Existing law prohibits a judgment of marital dissolution from being entered unless one of the parties to the marriage had been a resident of California for 6 months and of the county in which the proceeding is filed for 3 months before the filing of the petition.  SB 651 now authorizes a court to enter a judgment of marital dissolution, nullity, or legal separation between persons of the same sex if the marriage was entered in California and neither party to the marriage resides in a jurisdiction that will dissolve the marriage.

CALIFORNIA LEGISLATION SMOOTHS RESTRAINING ORDER PROCESS

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Another important piece of recent California legislation affects the way restraining orders are issued regarding domestic violence cases.  AB 454 acts to amend several CCP, Family, and Welfare and Institutions codes to require specified notice to a protected party of a proceeding to modify or terminate a protective order before its expiration when that proceeding is brought by someone other than the protected party.

As it stands now, the law authorizes California courts to issue injunctions enjoining parties from certain acts and behaviors in a variety of circumstances.  These include:

  • Domestic violence
  • Child abuse
  • Elder abuse
  • Cases involving harassment
  • Potential violence at a post-secondary school campus, and
  • Workplace violence

The present law also permits a court to terminate or modify these protective orders, which may include stay-away and residence exclusion orders, on written stipulation filed with the court or on the motion of a party.

AB 454 requires – if an action is filed for the purpose of terminating or modifying specified protective orders before their expiration by a party other than the protected party – that the party who is protected by the order be given specified notice of the proceeding to hear that action before the hearing.

This 2011 law also requires a court to deny the motion to modify or terminate the order without prejudice or continue the hearing if the party cannot be notified before the hearing, provided that on a showing of good cause, a court may specify another method for service of process that is reasonably designed to afford actual notice to the protected party.  Lastly, AB 454 permits the protected person to waive his or her right to notice under specified circumstances.

SIGNED MARRIAGE LICENSE DOES NOT TERMINATE DOMESTIC PARTNERSHIP AGREEMENT

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An important California Appellate Court decision has come down recently regarding the termination of domestic partnership agreements.  In the case of Estate of Wilson (2012) 211 Cal.App.4th 1284, 150 Cal.Rptr.3d 699, the California Court of Appeal affirmed that domestic partners’ subsequent marriage does not invalidate their domestic partnership agreement.  The Court further ruled that the trial court in this case did not err in concluding that surviving spouse’s knowing waiver of right to inherit, which was included in the partnership agreement, prevented him from claiming spousal share as decedent’s pretermitted spouse.

In reaching their decision, the justices traced the history of California law regarding domestic partnerships and same-sex marriages.  In 2003, the Legislature enacted the Domestic Partnership Act, which gave to domestic partners substantially the same rights, benefits, and obligations that married people have, except for those that federal law, the California Constitution, or the initiative statutes reserve solely for married people.

The appellate panel also acknowledged that same-sex marriages were maintained as valid in Strauss v. Horton (2009) 46 Cal.4th 364, 93 Cal.Rptr.3d 591, even though the high court upheld Proposition 8, which limited valid marriages to those between heterosexual couples.  In the case at hand, the question was whether the couple’s marriage license invalidated their domestic partnership.

In reaching their conclusion in the case at hand, the justices determined that if domestic partners have the same rights and protections as married persons, their domestic partnership agreements should be entitled to the same treatment as the prenuptial agreements executed by married people under the Uniform Prenuptial Agreement Act.  In this case, the parties had a signed agreement that contained a specific waiver of the right to inherit each other’s property except through a living trust or will.  It also provided that the agreement could not be changed or terminated without a written instrument signed by both parties.

REGISTERED DOMESTIC PARTNERS MOVE TOWARD TAX EQUALITY

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Registered domestic partners (RDPs) in California should beware: Thanks to the IRS, it is now possible to receive the same tax status under federal law as married couples enjoy regarding the reporting of community property income. Although not binding as legal precedent, the ruling is very much consistent with prior U.S. Supreme Court holdings re the taxation of community income. (Poe v. Seaborn (1930) 282 U.S. 10; U.S. v. Malcolm (1931) 282 U.S. 792.)

In its ruling the IRS states that each California RDP must report one-half of all community income received during the partnership on his or her federal income tax return. This has been the case under California state law, but the IRS did not previously extend community property principles to income earned by RDPs. The ruling further iterates that if an RDP earns income during the partnership, each partner will be required to report one-half of that income in his or her taxes beginning with the 2010 tax year. RDPs retain the option to file amended returns consistent with the ruling report for the tax years of 2007 to 2009, but they are not required to do so.

California law recognizes that registered domestic partners have the same rights and obligations under the law as spouses. So the IRS stance makes sense. As of January 1, 2007, California also began to treat earned income of RDPs as community property for state income tax purposes. Couples can register as RDPs in California if both partners are the same sex, or for opposite sex partners if at least one of them is 62 years of age. The ruling is limited to California RDPs, but could be applied to RDPs of any other state that extends its community property laws to RDP’s in the same manner as California.

Registered Domestic partners must continue to file as separate taxpayers on their federal income tax returns, since federal rules do not allow RDPs to file as “married filing jointly.” There are reduced federal tax rates for spouses who file separately. So, although RDPs cannot file jointly, they are not penalized for filing separately.

Many questions remain under federal law relating to registered domestic partners. That’s why it’s important to consult with a CPA before filing in this manner.