Archive for the ‘Guidance & Strategies’ Category

Fault and Fidelity in Same-Sex Marriages

October 25, 2010

Last night’s episode of Brothers & Sisters featured a difficult conversation between the gay spouses — starting with a discussion of whether to accept a foster child into their family (after their surrogacy efforts failed), and then leading into a disclosure by one of them of a breach of their monogamy commitment. The preview of next week’s show indicates that the admitted infidelity may will lead to an unraveling of their marriage.

Discussions of who is at fault for the failure to become parents and the consequences of an admitted tryst are fairly new to gay male relationships. Interestingly, a recent study at UCSF indicated that 50% of male couples have “negotiated non-monogamy,” which means not only that the non-monogamy is agreed to, but the limits and terms of such activities are also specifically negotiated. While some straight observers may be offended at this percentage, to many others a 50% non-monogamy rate would indicate a dramatic INCREASE in the percentage of monogamous couples! It’s likely that for many lesbian couples the monogamy percentages are higher, and the growing number of children in lesbian households and the higher frequency of marriage or partnership registration (3 to 1 relative to gay men, for example, in California) is likely to result in a greater number of complaints about an admitted infidelity.

Apart from what the sociologists or therapists might have to say, as a lawyer there are two questions that immediately arise in this context.

First, what does it mean to have an agreement for monogamy? Is it a true “contract” or merely an unstated or vaguely voiced expectation? And, since there is no god of contracts that comes down from the sky to preclude a breach of any contract, what does it really mean to enter into such a contract? Is it meant to be a limitation on future behavior, or rather, is it merely a statement of the state-of-mind of the partners at the time they express those intentions? A commitment can be an honest statement of intentions, without rising to the level of a contract that could be enforced, with penalties for non-compliance.

And second, to the extent there really was a contractual agreement, what is the appropriate remedy for its breach? Except in highly unusual settings courts will not enforce such contracts. Unlike the 19th century rules there is no legal obligation of sexual fidelity in a marriage in most states nowadays, and very few states even take such allegations into account in a distribution of assets or property (the marital rules generally are “no fault” rules). Thus, other than a strong sense of outrage and a fervent desire to punish the offending party, there isn’t much of a “remedy” available for breaches of this contract.

And so, one wonders, of what benefit is the invocation of a contractual framework?

Similar issues arise with the notion of fault in a break-up. In almost every dissolution where fault is alleged, the identified “faulter” will have a passionate defense, usually blaming the accuser for some conduct in the past that resulted in the alleged fault. Indeed, most affairs are related, at least indirectly, to underlying problems in the relationship that are being worked out through an affair. And, unlike the 19th century rules (where the one at fault could be punished financially or be restricted as to when he could remarry), marital rules these days disregard any fault factor in just about every state.

To my mind, the contractual framework is not the right one to use. Rather, one should focus on the most important values in a lasting relationship: honesty, commitment, loyalty, kindness, and enduring affection. An affair that is undertaken in secret is likely to be at odds with those values, regardless of whether or not an agreement was ever made — whereas an open discussion of extra-marital sexual desires (or involvements) can, and should, be handled in a manner that honors these important relationship values. Ideally the discussion should happen before the offending action occurs, and most importantly, the discussions must allow the other partner an equal level of participation in the resolution of the conflicts — before any affair has commenced. Only then can there be a truly “negotiated” agreement about outside sexual activities.

Monogamy is not legally required for any marriage, same-sex or different-sex, and fault is not relevant to the marital law rules — and so the issue of monogamy should not be framed in legalistic terms. It’s more a matter of loyalty, affection, dedication and honesty — and those are the values that should guide these challenging questions.

News from the LGBT Bar Association Conference

August 27, 2010

I’m attending this year’s Lavender Law conference, the annual gathering of the LGBT bar association — along with a large contingent of law students, as well as lawyers and judges. I participated in two panels, one on the complicated gender issues that arise in same-sex families, and the other on the impact of the extension of legal marital rules on lesbian and gay couples. The gender panel addressed the rarely-studied dynamics that often arise from the gender of the partners, either male, female or transgender, in the formation or dissolution of the couple’s relationship. The marriage panel explored how the new rules are playing out in the marriage-recognition states of New Jersey, Massachusetts and California, especially as they shape the dissolution processes of these relationships.

The conference panels included discussions of new parenting issues, the challenges facing LGBT immigrants and refugees, the role of social science findings in anti-discrimination litigation, and the latest news on the Don’t Ask Don’t Tell lawsuits. The larger plenary sessions addressed the current “mixed bag” status of the Obama Administration’s policies on LGBT issues, and the broader questions about the marriage movement.

But apart from the great legal insights and thought-provoking discussions, the most impressive aspect of the gathering is the wonderful diversity of young students and attorneys — in so many shapes and stripes and professional goals! Seeing this dynamic group of LGBT law students and emerging law professionals from all over the United States is a terrific inspiration, giving me confidence that whatever the particular legal issues that may emerge over the coming decades, there will be an enthusiastic cadre of lawyers ready to take up the causes and help our community.

Equally Wed, and The Kids Are All Right

July 17, 2010

Don’t get me wrong — I love a party, and I love a good film. And so, I’ve been pleased to see the emerging popularization of same-sex weddings and parentage, best exemplified by the new on-line magazine EquallyWed and the engaging new film, The Kids Are All Right. Both of these deservedly-celebrated popular endeavors deal openly with same-sex love and romance and child-rearing, in positive and culturally nuanced ways. I’m thrilled that they are out there.

At the same time, I’m a bit troubled by the lack of attention paid to the legal aspects of these important new developments. It’s not about whether or not folks buy my book, really — it’s whether gay couples are willing to spend even a brief amount of time and a modicum of funds dealing with the legal aspects of what they are taking on. As for the weddings, I’m concerned about the number of couples who spend great amounts of time and money on their outfits, the invitations and the caterer, without devoting even an afternoon to discussing their finances, their debt liabilities, and their home ownership plans — let alone sitting down to scope out a pre-nuptial agreement. I want these relationships to last, and to not end up as nasty divorces, and it concerns me that there isn’t a bit more emphasis on the legal and practical aspects of the partnership. It’s brutally painful when part of the divorce dispute is who is going to pay the unpaid wedding bills! For most couples a few thoughtful hours and some variety of legal documentation can avoid enormous heartache — and equally big legal bills in the event of a break-up.

As for parentage, the positive apect of the new film is that the couple appears to have done things right — most likely they are both legal parents, and they’ve used an anonymous donor so he doesn’t have legal rights over the kids — though he certainly exercises a powerful emotional influence. But all too many couples aren’t bothering to take care of these tasks in a thoughtful way, leading to difficulties that are incredibly hard to resolve. This is especially so for couples that live in states that don’t allow the non-birth parent to do a second-parent adoption, or where the ramifications of a parentage presumption statute for same-sex couples is unclear. It isn’t always possible to resolve the legal complications, but it’s crucial that every couple make the effort to learn about their legal situation and resolve the problems as much as is possible.

IRS Issues Favorable Tax Ruling for Domestic Partners

June 3, 2010

In a dramatic change of course, the IRS has finally issued two rulings that declare that the federal tax authorities will honor the community property aspects of California’s domestic partnership registration status. Because California’s registration is a marriage-equivalent status, income earned post-registration by either partner is considered community property, and is co-owned 50/50 by the two partners. Because the federal government generally does not recognize same-sex marriages or partnerships, there has been great uncertainty as to how to handle the sharing of such income between same-sex partners. This can be a problem while the couple is together (when they file their income tax returns), but also if the couple breaks up (and divides up the community property savings) or if one partner dies and the other one inherits the community property savings.

In a private letter ruling and a subsequent Chief Counsel Advisory, the IRS has ruled that federal tax law respects state law property and asset determinations, and so state-registered partners should each report and pay taxes on 50% of the community property income – just as is the case for straight married couples, and just as it is handled by the California tax authorities. And, because the non-working partner “acquires” his or her 50% by operation of law, it is not considered to be a gift or a second “earning” that would trigger any additional tax obligation.

While these rulings do not expressly deal with the issues of dissolution or death, partners should be confident that the IRS will continue to defer to California law when community property assets are transferred in these situations — and thus will not impose any additional tax burdens on the non-earning partner.

There are still many tax-related issues that have not been resolved. For example, these rulings do not deal with couples that married (either before or after Proposition 8 was passed) but did not state-register as domestic partners — though it is most likely that they will be protected by the same legal doctrine that was relied upon in these rulings. The rulings also do not address the more complicated problems of payment of spousal support after a dissolution, or the division of savings or an asset that was acquired prior to registration and thus is not community property. And, the rulings do not deal with the problems couples in non-community property states may face in the event of a dissolution or death of a partner.

However, the encouraging rulings that have recently been issued give us reason to be optimistic about these complicated situations. It is likely that there will be additional rulings emerging in the next year or so; and if the Defense of Marriage Act is repealed by Congress, most of these lingering discriminatory policies will be history.

Will Gay Marriages Last as Long as Straight Ones?

May 19, 2010

Clients (and reporters) often ask me whether I predict that the gay divorce rate will be higher or lower than the straight divorce rate – which most folks believe is about 50%. My answer – a typical lawyer answer, you may say – is yes and no. Here is why there is no clear answer to this fascinating question.
The Straight Divorce Rate
First, it is not so clear how many straight marriages end in divorce – and when. Heterosexual marriage is transportable across state lines, and not every state reports the total number of marriages and divorces each year. Many folks come to this country already married elsewhere, and no one is collecting those statistics. And, since an increasing number of straight couples are living together without marrying, it is hard to figure out whether these non-marital break-ups should be counted in the statistics on divorce.
That being said, the most reliable study on the long-term fate of a large sample of couples that married in 1974 showed that after 25 years, just under half of them were still together. Of the roughly 50% who were no longer together, about one-fourth of those that ended did so because of the death of one spouse, and about three-fourths ended because of divorce. So, that’s about a 40% divorce rate – but that is only after twenty-five years together. Other statistics show that about one-third of marriages eventually end in divorce, with a lower divorce rate for higher-educated and higher-income spouses and a declining divorce rate over the past few decades. My hunch is that a larger percentage of couples simply aren’t marrying at all, and thus never have to bother with a divorce, and that the lives of higher-class folks are more stable overall, hence a lower percentage of divorces.
Calculating the Same-sex Divorce Rate
Trying to calculate the gay divorce rate is going to be incredibly difficult, if not impossible. First, what constitutes a same-sex marriage? Gay marriage is allowed in six states and six foreign countries; in six other states couples can sign up for “all the rights and duties of marriage” but it is called domestic partnership or civil union – so are those folks considered married or not? How do we count those who marry or register where it’s allowed but live in states that don’t recognize those relationships? And, given how new these formal legal relationships are, and especially in light of the lack of federal recognition of state marriages, the “take-up” rate in the gay and lesbian community has been far less than the percentage of committed straight couples that marry. For those who were together for decades and are just now getting married, what should be counted as their date of marriage to measure the duration of their partnership?
There is also a powerful cultural and social dimension to this inquiry that must be taken into account. The marriage model has been the dominant model for straight couples for centuries – kids talk about their marriage plans even before puberty, and the entire social fabric of families, commerce, and religion pushes straight couples to consider marriage as the measure of relationship perfection. It’s an odd dynamic – especially as it turns out that unmarried couples in Sweden tend to stay together longer on average than married couples in this country, but still, the popular perception is that marriage guarantees long-term stability.
By contrast, many in the gay community, and yes, even in the lesbian community, do not frame their relationship in marriage terms. Relationships are more fluid, less likely to be monogamous, don’t necessarily involve cohabitation, and certainly are not always structured as a legal partnership. Those who don’t raise kids or own homes aren’t forced to elect a legal framework for their relationship, and those who are alienated from their parents and extended family don’t face the social pressure to “make it legal.” Recent studies show that as few as 10% of gay men are in a “legal” partnership, and even though the take-up rate is higher for lesbians, it is still only around one-third. Roughly half of the “unmarried” lesbians and gay men are, nonetheless, living in relationships, but for various reasons they choose to keep them informal – even in states like Massachusetts or California where marriage or domestic partnership is an option.
Then, there is the reporting problems at the “back end” of our relationships. There is a long history of neglect of our communities in the funding of statistical studies, and the federal government isn’t about to launch an effort to study the success and failure rates of our marriages. The inter-state complexities and the wider variety of social arrangements will make studying our relationships far more complicated, and finding the couples (especially in non-recognition states) will be next to impossible. And, since sexual orientation isn’t usually tracked even in states that have legalized same-sex marriage, a researcher would have to look at individual licenses to sort between straight and gay marriages – and for some with gender-neutral names further inquiry would be needed.
Bottom line, we don’t know how many gay “marriages” currently end in “divorce,” and chances are we won’t know for decades whether our legal relationships last shorter or longer than the straight ones.
So Why Is It Likely That Same-Sex Marriages Won’t Last So Long?
Despite the paucity of statistical data, now and well into the future, it is nonetheless reasonably prudent to predict that same-sex marriages will be shorter lived than straight ones, for a variety of statistical, sociological and legal reasons, summarized as follows:
1. Same-sex couples are far less likely to raise children together, for obvious biological reasons and because of lingering consequences of a socialization that discourages lesbians and gay men from parenting, and it is well established that having children leads couples to get married and stay married more often.
2. As a result of a long history of discrimination, lesbians and gay men tend to have lower education outcomes and lower incomes (despite the myth of the rich homosexual) and thus are less likely to find themselves in situations where marriage is appropriate – and thus they are less likely to marry in the first place.
3. The lack of social pressure and the lack of extended family and community support makes it far easier for same-sex couples to break up – and the lack of legal structuring makes it far easier for those unmarried same-sex couples to part ways. And, for similar reasons, even if the life-time rate of divorce turns out to be the same, chances are our marriages will tend to end after five or ten years, rather than twenty-five years or longer, which makes a very big difference in our lives, both practically and emotionally.
4. The “culture” of marriage influences the actions of straight couples in many ways – from the selection of partners to the public nature of their marriages to the broader family support for the couple while they are married. Conversely, the absence of this social and cultural framework is bound to make a difference in who gay and lesbian folks pick as partners, how they think about and organize their relationships, and how they approach their relationship problems in the long term. Thus, even those who get married in the formal legal sense are less likely to stay married in the long term.
5. The legal and political volatility has led to some flawed decision-making, for understandable reasons. Straight folks have the luxury of a constant legal environment, with marriages recognized nationally and the law staying roughly the same from year to year. By contrast, we have been whipsawed between court rulings, electoral defeats, and uncertainties about the validity of our relationships, and not surprisingly many same-sex couples have married, or not married, at the wrong time and in the wrong place, leading to a higher instability in those relationships.
6. Touchy as it is to admit, even though there are understandable reasons having to do with a history of discrimination and family mistreatment, my perception is that there has been a higher frequency of emotional instability, alcohol and chemical dependency, and relationship conflicts in our community. It will take a generation or so of true social acceptance of same-sex relationships (especially for younger gay folks, where these attitudes are formed) before these lingering impacts of homophobia will be eradicated, and so it is likely that our relationships will continue to be more turbulent for a few more decades to come.
7. An openness to relationships not working out (and a relative absence of the shame and disfavoring of divorce) may well lead to a healthier willingness to part ways when things are not working out – and to me, when no kids are involved this is not necessarily a bad thing.
And in the end….…..
Hard as it is to study, what really counts for all relationships, gay or straight, is relationship satisfaction, not marriage duration. If unhappy gay marriages end earlier than their straight counterparts, that is not necessary a bad thing; what is more important is to find ways to support our relationships and families regardless of sexual orientation.

The Lessons of the Texas Divorce Appeal

April 21, 2010

The disturbing news from Texas is that the Attorney General has decided to challenge a local court’s right to grant divorces to several same-sex couples that married out of state, and now want to end their marriages. To me, the only thing worse than not being able to marry is not being able to get divorced — both because it ties you to someone you want to be free of, and also, it probably prevents you from re-marrying ever again. It seems especially cruel for those who campaign against marriage equality to try to prevent same-sex couples who want to exit their marriages!

As for the Texas cases, it should be easy for the courts to say that the marriages can be “dissolved” or annulled — without stepping into uncharted legal territories. But beyond the politics and moral dramas of these cases, what they point to most significantly is the need for greater legal education for lesbians and gay men about the nuances and complexities of the current legal landscape. As we explain in our book, being married and living in a non-recognition state can create terrible problems for the couple, in the happy times or the hard times. For the most part your state won’t grant you benefits while you are together — so the marriage won’t give you the financial and legal benefits that marriage is supposed to provide. And, if you should part ways, your state won’t make it easy for you to separate legally or financially, and so you probably won’t be entitled to any of the “marital property” benefits that straight couples enjoy.

That is why the suggestions set forth in our book are so important. If you want the symbolic recognition of a government-issued “partnership,” the California domestic partnership registry allows a California dissolution even if you live outside of California. Then, for the practical concerns, you can sign powers of attorney, a cohabitation agreement, and other legal documents, to give you the real and substantial benefits of legal recognition — even if you live in a non-recognition state.
Fighting for civil rights and marriage equality is the right thing to do — but creating legal difficulties for you and your partner should things go awry isn’t helpful to anyone!

Changing Landscape of Marriage Recognition

February 25, 2010

The rules for marriage recognition are changing, and the situation is somewhat improved over last year. In California, the legislature enacted a new rule that grants non-California married couples “all the rights and duties of marriage but not its designation.” While this leaves a lot of confusion (what does one write on a deed?) the clear intent is that non-California married will be treated as if married for all purposes. This includes the rights to shared property and also shared debt liability, and the duty to go through a judicial dissolution in the event of a break-up.

In Maryland, the Attorney General has recently ruled that non-Maryland marrieds must be treated as married in that state. This means that whenever a Maryland couple travels out of state to marry, or if a married couple moves to Maryland (or even visits it for a week on vacation), they will be treated as married for all legal purposes. This ruling by the Attorney General may not be enforced everywhere in the state, and it is likely that there will be legislative or court action to set aside this ruling. But for now, couples should assume that they will be treated as married, for better or for worse, if they live in Maryland.

New Jersey and New York, for the most part, are recognizing out-of-state marriages, and once the 30-day Congressional hold expires regarding Washington D.C.’s recently enacted marriage statute, full legal marriage will be available or recognized nearly everywhere in the Northeast region.

Your New Year’s Resolution: Organize Your Legal Affairs

January 10, 2010

The new year has brought us disappointing news from New York and New Jersey: in both states the legislatures have defeated the attempts to legalize same-sex marriage. As discouraging as these developments are, they should not distract any of us from a resolution that is as important as fighting for one’s right to marriage equality: the need to take care of one’s own legal affairs, with or without marriage. Bear in mind that same-sex couples have been forming families and living together happily without marriage for centuries, and will continue to do so even while the marriage equality battle moves forward.

Ironic as it may seem, two of the most important tasks for any same-sex couple are planning for your inevitable death or, for many couples, a dissolution. Rest assured, making these plans will not hasten either event, and when it comes to dissolution, careful legal and financial planning can actually help reduce the risk of its occurring. Why is this? It is because thoughtful planning around difficult financial issues can bring the two of you closer together, and can help you spot and resolve hard legal issues that could otherwise create resentment and conflict.

Regarding disability and death, the three key documents to have in place are a will or trust, a power of attorney for financial affairs, and a medical directive. More information about all of these legal documents can be found in Nolo’s Legal Guide for Lesbian & Gay Couples. As to dissolution, the important documents (for an unmarried or unregistered couple) are a cohabitation agreement and (if you own property) a co-ownership agreement, spelling out who owes what and who will get what in the event of a dissolution. For couples who are married or in a marriage-equivalent registration, your task is to learn what it means to be covered by marital law, and decide whether you want to sign a pre- or post-marital agreement to modify those rules. If you are co-parenting child, you will want to be sure that you are both legal parents, if that is possible in your state.

Working out these agreements will force you to think about your savings plan, your retirement safety net, and your housing situation, and it will motivate you to take stock of your household finances and budget. And, taking on these tasks will help you develop your goals for creating a solid legal and financial foundation for your future as a couple. While your agreements will also cover the possibility of a separation, chances are your discussions will motivate you to make plans and take the steps necessary to implement those plans, for your shared benefit.

Marriage as a Framework for Divorce

October 23, 2009

One of the least appreciated “benefits” of marriage is the framework it offers couples in the process of divorce, should their relationship come to an end. State legislatures have worked for decades to refine the legal dissolution process, and while the system is far from perfect — and it can create unexpected problems for some couples — it offers a clarity of rules and a rational process that can be very useful in the heated emotional atmosphere of a break-up. The rules are both substantive and procedural, and both aspects are often helpful.

On the procedural dimension, most state court rules mandate an exchange of financial information, provide access to a judge who is specially assigned to dissolution disputes, and provide a methodology for determining parentage and resolving custody disputes. In most states there are significant initial filing requirements and formal timelines for finalizing the dissolution. Most important to note is that if the couple is able to work out all disputes the court process need not be protracted or expensive.

On the substantive side, the divorce rules establish a baseline for determining who owns what asset and who is responsible for the couple’s debts, and provides more general rules for resolving disputes about property and other assets, such as retirement benefits or payment of post-separation support. While to some folks the rules are an unwelcome imposition of a normative set of guidelines, there are underlying principles of fairness and mutuality of support that form the basis for these rules. Rather than viewing the relationship as a mere “contractual” deal, the marriage rules incorporate the values of care and support over time, a respect for the fiduciary obligations of the parties, and restrictions on the disposition of assets without mutual consent.

In other words, a legal marriage (or its equivalent in the domestic partnership or civil union states) binds the parties to participate in a judicially supervised dissolution process. It can be time consuming and expensive, and it can result in an allocation of assets that is different from what might have occurred in the absence of such regulation. In light of the changing nature of the rules for same-sex couples, there can be many legal complexities to fight over, for couples that want to go into battle. But for many couples, the divorce process offers a more rational and more equitable outcome.

A “good divorce” is never a reason to get married or legally partnered, but in many instances it may end up being an unanticipated benefit of “making it legal.”

The Times Have Surely Changed

October 11, 2009

I quipped many years ago that when the New York Times started running same-sex wedding announcements, we would know that our relationships had moved into the social mainstream. Happily, we’ve been able to enjoy these announcements for nearly ten years now. One such announcement this month provides a vivid illustration of how dramatically our lives have been transformed in the past twenty years, and the couple’s poignant story – and their possible legal complications – mark them as “poster children” for the successes of our movement — and also, for the legal challenges same-sex couples continue to face.

Lavi Soloway is a founder of Immigration Equality and a partner in a top-notch immigration law practice in New York City. He’s been a single dad living in New York, and he and his boyfriend (they met on line, no less) recently married in Canada. So, we have a same-sex step-parent, a Canadian marriage, and spouses living in New York or California. Fortunately, Lavi had already immigrated to this country, but if he hadn’t done so, the federal disregard of their marriage would have severely hampered his relocation. His earlier adoption illustrates the challenges some gays and lesbians still face in adopting children — either because their state doesn’t allow gays to adopt at all, or because they are trying to do an international adoption. In many jurisdictions a same-sex couple cannot adopt a child as a couple, and in many states the “second parent” still can’t become a legal parent after the first parent has completed the adoption. As for their Canadian marriage, New York state will probably recognize it, but possibly not for all purposes (such as tax treatment), but with the signing of SB54 we now know that their post-Prop 8 marriage will be recognized if they relocate to California, though won’t be “designated” as a marriage, whatever that means! Most troubling, as of 2009 their marriage will not be recognized by the federal authorities, which could create a plethora of tax and legal problems regarding their relationship and the future legal issues involving Lavi’s child.

Hopefully these barriers will be removed before this newly-traditional form of family faces any significant legal problems — but in the meantime, congratulations to Lavi and Sebastian on their very romantic story!