In two recent decisions – one from New Hampshire and the other from New York state courts of appeal – the reality of our families has been recognized by the judicial system. In these two significant decisions, the judges looked beyond the historic legal precedents to establish new rights for lesbian and gay male couples. There is no question but that the United States Supreme Court’s decision striking down all remaining bans on same-sex couples from marrying was the impetus to these decisions, empowering the judges to grant greater legal recognition than had previously been possible.
In the New Hampshire case, known as Matter of Deborah Munson and Coralee Beal, 2016 N.H. LEXIS 180, 2016 WL 4411308, the issue was one that is coming up in many same-sex divorces these days: what is the duration of the marital relationship, when the couple was together for many years prior to when they could legally marry? This couple lived together for fifteen years before they were able to register as civil union partners. Their registration automatically was converted to marriage in 2001, and then they broke up a year later. The dispute in their divorce was whether their marriage was only four years in duration, or nineteen years. In view of the assets that one of them had accumulated, the answer to this question made a huge difference in the amount of money that would go to the lesser-asset partner.
Fortunately, the law in New Hampshire allows judges hearing divorce cases to take into consideration all factors relevant to the issue, and authorizes them to make decisions based upon equitable considerations. The Supreme Court ruled that the fifteen year period of pre-registration cohabitation must be taken into account in allocating the assets of the spouses.
As a growing number of long-term same-sex couples break up, the legal issue of the duration of their marriage is certain to arise more often. Some state courts will take a hard line approach and disregard the years of pre-marital cohabitation. We hope that more courts will follow the lead of the New Hampshire Supreme Court and treat the pre-registration or pre-marital period as they should — as an integrated part of the marital relationship.
The New York case (Matter of Brooke S.B. v. Elizabeth E.C.C., NY SlipOpp 05903) involves the issue of who is a parent, where one of the partners did not obtain an adoption of the child born to her long-time partner. New York state has been one of the most draconian in this area, holding tight to a decision from 1991 that established that when the couple breaks up, the second parent could not seek custody or even visitation of the child she had co-raised for years in the absence of a legal adoption or parentage established by the marriage of the partners. Finally, the appellate court of New York State did the right thing, and ruled that where there was a clear intention by the parties to adopt or give birth to a child, and then, where the child was raised as the child of both parents, the court must allow the second parent to seek custody or visitation of the child in the event of a break-up of the parents’ relationship.
Here’s the rule established by this important decision: “where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.”
Note: this decision does not address the related question of what happens when one partner has a child (or adopts a child) before the couple meets, and then the non-legal partner shares in the raising of the child. This decision only extends protection to partners who were involved in the conception or adoption of the child from the outset.