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.

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.

LESBIAN IMMIGRANTS ALLOWED TO CHALLENGE DEFENSE OF MARRIAGE ACT

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An important federal ruling has just been issued which declares that a lesbian couple facing immigration troubles has the standing to challenge the federal Defense of Marriage Act (DOMA) because it violates the constitutional rights of immigrants in same-sex marriages.  According to the Ventura County Star, the U.S. District Judge also ordered that a lawsuit, filed last year on behalf of Philippines citizen Jane DeLeon and her spouse Irma Rodgiguez, can proceed as a class-action case.

In her lawsuit, DeLeon claimed that she was eligible to obtain a green card, but wasn’t able to get a waiver she needs to obtain residency here because the U.S. government doesn’t recognize her same-sex marriage to an American.  The lawsuit was filed by the Los Angeles-based Center for Human Rights and Constitutional Law.  Their president, Peter Schey, claimed he hopes the decision will lead the government to reconsider visa application by same-sex couples.

DeLeon has asserted that her visa application was denied solely because “we have a same-sex marriage.”  This case is but one of a number of challenges brought by same-sex couples – some facing immigration troubles – over the 1996 law that prohibits the U.S. government from recognizing same-sex marriages, which is now under review by the U.S. Supreme Court.

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.

MARRIAGE ACT STUDIED BY U.S. SUPREMES

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Last week, the United States Supreme Court scheduled a closed-door conference to review several cases that seek to overturn the Defense of Marriage Act that was overwhelmingly passed by Congress and signed into law by former President Bill Clinton.  The reason for the meeting is quite simple.  The Court must decide which, if any, should be placed on the court’s schedule for arguments next year.

The outcome is crucial.  It carries important social and economic consequences for gay, lesbian, and bisexual couples who are unable to file joint income taxes, access Social Security survivor benefits, inherit a deceased spouse’s pension, or obtain family health insurance.

The federal trial courts that heard the cases ruled the act violates the civil rights of legally married gay men and lesbians.  Two appellate courts agreed, making it highly likely the high court will agree to hear at least an appeal.

There have probably never been so many gay rights cases knocking on the Supremes door at one time.  The Supreme Court was also scheduled to discuss whether it should take two more long-simmering cases dealing with relationship recognition for same-gender couples.

The first is an appeal of two lower court rulings that struck down California’s voter-approved ban on same-sex marriage.  The second is a challenge to an Arizona law that made state employees in same-gender relationships ineligible for domestic partner benefits.

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