A Legal Guide for Lesbian & Gay Couples

A Legal Guide for Lesbian & Gay Couples

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A Legal Guide for Lesbian & Gay Couples

Protect and exercise your rights

, Attorney; , Attorney & Mediator; and , Attorney

, 18th Edition

Take the proper legal steps to define and protect your relationship in the eyes of the law, using the practical and legal information in this book. Even though the Supreme Court legalized same-sex marriage in 2015, many questions remain for those same-sex couples who choose to remain unmarried and/or are registered in a civil union or domestic partnership. And parenting rights for same-sex couples still vary depending on the couple's relationship status and state laws. You'll learn about these important subjects and many more, including:

  • domestic partner benefits
  • establishing parental rights, including a through a second parent adoption, a stepparent adoption, a court judgement of parentage, and/or a contractual agreement
  • buying property together, and
  • providing for each other upon death.

See below for a full product description.

Protect yourself and your loved one with sound legal planning

Gay and lesbian couples have gained a lot of legal ground in recent years. Although same-sex marriage is now legal across the U.S.,
laws governing civil unions and domestic partnerships vary from state to state.

So it’s still important to define and protect your relationship in the eyes of the law—and A Legal Guide for Lesbian & Gay Couples can help.

This plain-English guide shows you how to:

  • structure your relationship with a contract
  • jointly buy a house or other property
  • make practical decisions about living together, marrying, or registering as legal partners
  • make a will or living trust
  • make medical decisions for each other if needed
  • have and raise children through adoption, donors, surrogacy, or foster parenting, and
  • deal with the end of a relationship.

The 18th edition is completely revised to provide the latest on same-sex marriage, domestic partnerships, and civil unions, and new information regarding parentage laws.

For Legal Updates on LGBT Law, Click here

 

“Informative for any unmarried couple.” - San Francisco Chronicle

“The edge of the law ... will be much less fearful for those who have this book.” - Los Angeles Times

“Provides a legal roadmap for anyone looking for guidance towards protecting his or her family.” - Elizabeth Birch, Executive Director, Human Rights Campaign

ISBN
9781413322798
Number of Pages
432
Included Forms

    • Renting Together Agreement
    • Moving-In Agreement
    • Agreement to Jointly Raise Our Child
    • Parenting Agreement
    • Nomination of Guardian for a Minor
    • Donor Insemination Agreement
    • Contract Regarding Child Support and Custody
    • Temporary Guardianship Agreement
    • Authorization to Consent to Medical, Surgical, Dental Examination or Treatment of a Minor
    • Will
    • Codicil
    • Mediation-Arbitration Clause #1
    • Mediation-Arbitration Clause #2
    • Agreement to Keep Income and Accumulations
    • Agreement to Combine Income and Accumulations
    • Agreement for Joint Outright Purchase
    • Agreement Regarding Jointly Owned Item Purchased Credit in One Partner's Name
    • Contract for Long-Term Couples
    • Living Together Agreement—Keeping Things
    • Living Together Agreement—Sharing Most Property
    • Agreement for Sharing Household Expenses
    • Joint Project Agreement #2
    • Agreement Allowing Alternating Time Off
    • Agreement for Educational Support
    • Agreement for Compensating a Homemaker
    • Contract for Equal Ownership of Real Property
    • Contract for Ownership of Real Property and Payments Split Unequally
    • Promissory Note for Down Payment Money
    • Contract When One Owner Does Not Live on the Premises #1
    • Contract When One Owner Does Not Live on the Premises #2
    • Contract for Sale of a Share of House
    • Postseparation Agreement Regarding Housing
    • Settlement Agreement
    • Agreement Regarding Mediation and Arbitration
    • Postseparation Parenting Agreement 

Your LGBT Family Companion

  • How We See Our Relationships
  • How This Book Can Help
  • Using the Forms in This Book

1. Defining Family: Basics of Marriage, Domestic Partnership, and More

  • Defining Family
  • The rise (and Likely Fall) of Domestic Partnership
  • Benefits for Domestic Partners
  • Making It Legal, and the Key Ramifications of Marriage
  • Premuptial and Prepartnership Agreements
  • Is Marriage (or Its Equivalent) Right for You?
  • Special Issues When One Partner Is Transgender
  • Adopting Your Partner
  • Keeping Up With Legal Changes

2. Money, Insurance, Name Changes, and Immigration Issues

  • Cash and Credit
  • Insurance
  • Name Changes
  • Foreign Lovers: Visits and Immigration

3. Renting a Home Together

  • If a Landlord Discriminates Against You
  • Sharing a Rental
  • Sharing One Partner's Rented Home
  • Renter's Insurance
  • Moving On
  • Public Benefits and Living Together

4. I'm Mom, She's Mommy (or I'm Daddy, He's Papa)

  • Legal Parents and the Second-Parent Trap
  • Having a Child
  • Adopting a Child
  • Foster Parenting
  • Becoming a Guardian
  • Agreements With Teenagers

5. Medical and Financial Matters: Delegating Authority

  • Health Care Decisions
  • Physician-Assisted Suicide
  • Burial and Body Disposition
  • Estate Planning Note
  • Durable Power of Attorney for Finances

6. Looking Ahead: Estate Planning

  • Death and Living Together Contracts
  • Wills
  • A Sample Will
  • Estate Planning Beyond a Will

7. Living Together Contracts for Lesbian and Gay Couples

  • Living Together Contracts Are Legal
  • When You Need a Living Together Contract
  • What to Include in a Living Together Contract
  • Sample Living Together Contracts
  • Contracts for Jointly Acquired Items
  • Modifying Your Agreement
  • Beware the Tax Man!

8. Buying a Home Together (and Other Real Estate Ventures)

  • Finding a House
  • How Much House Can You Afford?
  • Proceeding With Your Purchase
  • Taking Title to Your New Home
  • Contracts for Home Purchase and Ownership

9. Going Separate Ways: Issues at the End of a Relationship

  • Breaking Up: An Overview
  • The Separation Process: What to Do
  • Getting to Yes: How to Work Toward Resolution
  • Ideas for Solving Some Common Problems
  • Breaking Up When There's No Legal Relationship
  • Dissolving a Same-Sex Marriage
  • Dissolving a Straight Marriage
  • Domestic Violence in Same-Sex Relationships

10. Help Beyond the Book

  • Hiring a Lawyer
  • Doing Your Own Legal Research
  • Legal Organizations

Appendix: Using the Interactive Forms

  • Editing RTFs
  • List of Forms

 

Index

Chapter 1
Defining Family: Basics of Marriage, Domestic Partnership, and More

Defining Family

The Rise (and Likely Fall) of Domestic Partnership

   Who Are Domestic Partners?

   Statewide Domestic Partnership or Civil Union Options

   Requirements for Registration

   Rights and Responsibilities of California Registered Domestic Partners

   Ending a California Domestic Partnership

Benefits for Domestic Partners

   Employee Benefits for Domestic Partners

   Qualifying for Employee Benefits

   Limited Cobra Coverage for Domestic Partners

   Other Benefits

Making It Legal, and the Key Ramifications of Marriage

   Requirements for a Marriage License

   Marital Rights and Responsibilities

   Ending a Legal Marriage

Prenuptial and Prepartnership Agreements

Is Marriage (or Its Equivalent) Right for You?

Special Issues When One Partner Is Transgender

Adopting Your Partner

Keeping Up With Legal Changes

 

 

In February 2004, America turned on its televisions and saw something it had never been seen before in this country: same-sex couples taking marriage vows. Two blushing brides or dashing grooms smiled at the cameras as history was made, complete with flowers, beaming families and friends, and legal marriage licenses. Less than 12 years later—on June 26, 2015the United States Supreme Court decided the historic same-sex marriage case of Obergefell v. Hodges. In its ruling, the Court invalidated all of the remaining state-wide bans on same-sex marriage and ruled that same-sex couples could get married anywhere in the United States.

 

Thirty-Six Years Later: An Historical Perspective on Family

The first edition of this book (published in 1980) addressed the issue of marriage only by noting that it wasn’t available to same-sex couples, and discussing what that meant. The first chapter was about legal and political strategies for fighting discrimination, and about legal rules governing sexual conduct throughout the United States. It was only in the 12th edition, published in 2004, that we deleted the chart listing state laws prohibiting consensual sexual conduct—it took the 2003 United States Supreme Court decision in Lawrence v. Texas to make sodomy laws obsolete.

In 1980, there was no such thing as “domestic partnership.” No state offered any benefits to nonmarital partners—straight or gay—and the only way for same-sex couples to protect their rights in relationships was to write contracts defining how they wanted to deal with their money and assets. These contracts were the focus of the first edition, and even though marriage is now available throughout this country, they are still an important focus over 35 years later. While there have been major changes in the past few decades, the need for same-sex couples to take control of their legal relationships has not changed. We still need to educate ourselves, communicate about how we want to structure our relationships, and take the time to put our arrangements in writing.

 

 

Over the course of the past 20 years, we have witnessed the passage of marriage-equivalent registrations, the imposition—and invalidation—of federal and state constitutional bans on same-sex marriage, and a wide variety of statewide initiatives and political campaigns. We also endured a decade of uncertainties regarding federal and interstate nonrecognition of valid state-sanctioned marriages. Although it took some time and a lot of effort, full marriage equality across the U.S. is finally a reality. 

This chapter provides an overview of the developments in the fight for same-sex relationship recognition, including:

the legal definition of “family” and court decisions affecting it

the emerging rules of federal recognition

domestic partnership and similar programs across the U.S.

same-sex marriage

how to structure your relationship with a contract

adult adoptions, and

how to keep up with fast-moving legal developments.

Defining Family

According to Webster’s New Collegiate Dictionary, a family is “the basic unit in society having as its nucleus two or more adults living together and cooperating in the care and rearing of their own or adopted children.” Despite this inclusive (and sexual-orientation-neutral) definition, a lesbian or gay couple—with or without children—is not the picture that many people see when they think of a family.

As a result, government benefits traditionally awarded to spouses—such as unemployment insurance for spouses who relocate to accommodate their partners’ job changes, and workers’ compensation benefits for spouses of injured workers—have historically been denied to same-sex partners. And because they are often not considered “immediate family,” partners of lesbians and gay men have been denied the right to sue for emotional distress over the death of a partner or to stay in an apartment after their lover dies when their name isn’t on the lease. Along the same lines, until recently, same-sex couples have generally not been treated as spouses when their relationships ended, leading to confusion over how to divide their assets.

Over the past two decades, things have changed dramatically. For the most part, the invalidation of all state-wide bans on same-sex marriage has removed most of the barriers to full equality that our community faced when it came to relationships and marriage. And the federal government now recognizes same-sex marriages. Most of the remaining problems arise from the nonrecognition of marriage-equivalent registrations and the lingering problems of legal parentage, which are being eliminated as well.

The Rise (and Likely Fall) of Domestic Partnership

Because lesbian and gay couples historically have not been allowed to marry until recently, the idea of domestic partnership developed as an alternative that would be less threatening to the established social system while still providing same-sex couples some legal recognition.

But the term “domestic partnership” doesn’t always mean the same thing. This section discusses the varying meanings of domestic partnership and explains some of the benefits and consequences of domestic partnership registration—which is still available in some states.

Who Are Domestic Partners?

The concept of domestic partnership has undergone an evolution, and the term now can have various levels of legal significance depending on its context.

Informal arrangements. Many couples call themselves “domestic partners” because they live together in a committed relationship. There are no legal consequences to simply referring to yourselves this way, but if you live in a state where legal domestic partnership is available, just considering yourself domestic partners and referring to yourselves that way isn’t enough—you must register formally with the state in order to be eligible for any benefits your state offers. If you don’t, you’re technically not domestic partners—and so “cohabitants” would be a more accurate term.

Partnerships recognized by employers. Many employers—government and private—responded to the ban on same-sex marriage by treating cohabitating partners of employees just like employees’ spouses. For example, a domestic partner may be eligible for coverage on an employee’s health insurance policy. It’s up to the employer to determine who qualifies as a domestic partner and what proof it requires. Not all employers require formal registration documents to confer benefits, but in states where marriage or official registration is available, employers are more likely to require partners to take that step in order to receive employer-provided benefits. Be careful here, as many employers have started cancelling benefits for those couples who choose to remain unmarried on the grounds that domestic partnership benefits were only extended to gay couples because they were prohibited from marrying. Our hunch is that an increasing number of employers will do the same in the next few years.

Local registration. Some cities and counties allow residents to register locally as domestic partners, but these registrations do not impose any marital rights or duties. Often, a county transfer tax exemption for property transfers between partners—saving anywhere from a few hundred to a few thousand dollars in taxes when a house is transferred or sold—is the most meaningful benefit offered by local entities. As with the employer registrations, some local governments may shut these options down, now that marriage is available to same-sex couples.

State registration. Many of the states that previously offered marriage-equivalent registration have phased out these alternative systems, and very few couples bother to register anymore now that marriage is available nationwide. But the civil union or domestic partnership registration systems in California, Colorado, D.C., Hawaii, Illinois, Nevada, New Jersey, Oregon, and Washington State remain a legal option, and they offer a framework of rights and responsibilities that are pretty much identical to those that come with marriage. However, federal agencies don’t recognize the couples in these partnerships as spouses, so they do not qualify for any federal marital benefits.

Statewide Domestic Partnership or Civil Union Options

Here’s the latest list of states where civil union or domestic partnership registrations are still available:

California: State domestic partnership is marriage equivalent, and it remains available to same-sex couples of any age and heterosexual couples where at least one partner is over the age of 62.

Colorado: Civil union registration is marriage equivalent, and it remains available to same-sex couples of any age and heterosexual couples where at least one partner is over the age of 62.

District of Columbia: Domestic partnership is marriage equivalent, and it remains available to same-sex couples of any age and heterosexual couples where at least one partner is over the age of 62.

Hawaii: Civil union registration is marriage equivalent, and it remains available to same-sex couples of any age and heterosexual couples where at least one partner is over the age of 62.

Illinois: Civil union registration is marriage equivalent, and it remains available to same-sex couples of any age and heterosexual couples where at least one partner is over the age of 62.

Nevada: State domestic partnership is marriage equivalent, and it remains available to same-sex couples of any age and heterosexual couples where at least one partner is over the age of 62.

New Jersey: Civil union registration is marriage equivalent, and it remains available to same-sex couples of any age.

Oregon: State domestic partnership is marriage equivalent, and it remains available to same-sex couples of any age and heterosexual couples where at least one partner is over the age of 62.

Washington State: State domestic partnership is marriage equivalent, but is only available to couples where one partner is over the age of 62.

Requirements for Registration

The registration for domestic partnership (or civil union registration, as it’s called in some states) is roughly the same in each state. The California rules are typical. Same-sex partners must register with the California Secretary of State (www.ss.ca.gov) to be eligible for rights and benefits under the domestic partnership laws. Registering with a California city, county, or private employer that also offers domestic partner registration is not enough to get the benefits and obligations provided for in the state law, even if you believed in good faith that you were obtaining all those rights.

The requirements for California state registration, which costs $33, are:

Both partners must be 18 or older and capable of consent (if you are reading and understanding this book, you are capable of consent).

Neither partner may be married to—or in a registered domestic partnership with—someone else.

The partners no longer need to live together, as was previously required. And, you don’t need to live in California in order to register, but many other states won’t recognize your domestic partnership, so as a practical matter, there’s not much point in coming in from out of state to register unless you plan on sticking around.

The partners must not be related by blood.

The registration form must be notarized.

In addition, the partners must both be of the same sex, or one partner must be over the age of 62. Opposite-sex couples in which neither partner is 62 or over are not eligible to register as domestic partners. (The 62-or-over exception exists because for many people in that age bracket, getting married can have a negative effect on Social Security and other benefit entitlements. Allowing people in this situation to register as domestic partners means they can take advantage of the benefits of marriage without some of the potential downsides.)

When you register, you must attest that you meet the above requirements. You also have to agree that if your relationship ends and you live somewhere else, you can use a California court to terminate your partnership. This means the California court can process the legal paperwork involved in ending your relationship and decide how your property will be divided if you and your partner can’t reach your own agreement. If the state you’re living in when you separate won’t dissolve your partnership in its courts, this provision will allow you to use a California court to officially terminate your domestic partnership.

NOTE: Not all states offer this “out-of-state” termination option, which can make it hard to dissolve your partnership if you live in a state that doesn’t recognize your registration.

 

We Left Our Hearts in San Francisco:
The Fight for Same-Sex Marriage in California

On February 12, 2004, San Francisco Mayor Gavin Newsom (now former mayor) made history when he ordered the city to begin issuing marriage licenses to same-sex couples. Phyllis Lyon and the late Del Martin, pioneers in the gay rights movement who had been together 50 years, were the first couple to take their vows. After that, thousands of couples wed until the state Supreme Court put a stop to the marriages in March, and in June issued an opinion voiding all of the marriages that had been performed.

But Mayor Newsom and all the couples who married during the brief window of opportunity started something. The couples whose marriages had been voided brought a lawsuit, which resulted in an historic victory in 2008. The California Supreme Court ruled that the ban on same-sex marriage was unconstitutional. Unfortunately, that victory was short-lived—in November, the voters passed “Proposition 8”—a constitutional amendment that reinstated the ban, and the amendment itself was upheld by the state court as constitutional. While we always had grave doubts as to the legal wisdom of that decision, it remained the law until June of 2013, when the United States Supreme Court threw out the challenge to a federal court decision that had declared the initiative unconstitutional. Thus, both marriage and domestic partnership options are available in California. Given the importance of federal benefits, we expect that most couples will prefer to marry rather than register as domestic partners. Someday, the Golden State may eliminate the domestic partnership option as most other marriage-equality states have done.

 

The California Domestic Partner Rights and Responsibilities Act went into effect on January 1, 2005. If you registered before that date, all of the new rules apply to you—you don’t need to reregister. And the provisions of the law are retroactive to the date of your registration, a rule which will likely lead to litigation as couples break up and argue about who owned how much of what, and when.

It’s important to know that if you are already state registered and you want to get married (either for personal reasons or to obtain federal benefits), you can do so without terminating your domestic partnership. However, in most states your earlier registration date will still be your “date of marriage” for all financial purposes.

 

Resource

Visit the California Secretary of State’s website. For more information about domestic partnership, or to download the registration form, go to www.ss.ca.gov.

Rights and Responsibilities of California Registered Domestic Partners

Domestic partnership in California carries with it a wide range of rights and responsibilities, equivalent to those that apply to married same-sex couples, as follows: 

Domestic partners have community property rights, meaning that unless the partners agree otherwise in writing, all income earned—or property acquired—by either partner during the partnership belongs to both partners equally, regardless of who earned or acquired it. This rule is retroactive to the date of registration, even though you might not have known when you registered that these rights would be involved.

Each domestic partner has an equal right to manage and control community property (the income and property acquired by either spouse during the partnership), and an obligation to deal with the property in ways that will benefit both partners.

The couple’s community property is liable for community debts (those incurred during the partnership), and each partner may be responsible for debts incurred by the other partner during the partnership.

A child born into a registered domestic partnership will be considered the legal child of both partners. Technically, no adoption proceeding should be necessary—but legal experts consider it wise to do an adoption to ensure that the second parent’s rights are fully protected.

Registered domestic partners must receive the same employee benefits as spouses, under a 2007 law that requires even employers with out-of-state home offices to provide the same level of benefits.

Transfers of real property between domestic partners, whether in the course of the relationship or when the relationship ends, do not result in property tax reassessment (this applies to California state property tax only, not to federal tax questions of any kind).

Domestic partners have the same privilege as spouses to refuse to testify against each other in court.

Domestic partners have the same rights as married couples to family student housing, senior citizen housing, and other housing benefits.

A surviving domestic partner has the right to make anatomical gifts, consent to an autopsy, and make funeral arrangements for a deceased partner.

Upon separation, an economically dependent partner has the right to seek spousal support from his or her former partner.

As of tax year 2007, registered domestic partners must use the same filing status as married couples.

In addition, domestic partners and spouses have the right to:

sue for the wrongful death of a partner

make health care decisions for a partner who becomes incapacitated

inherit just what a spouse would if the partner dies without a will

use sick leave to care for an ill domestic partner or the child of a domestic partner

relocate with a partner without losing eligibility for unemployment benefits

apply for disability benefits on behalf of an injured or incapacitated partner, and

deduct from taxable income the cost of a domestic partner’s health insurance or another benefit for state income tax purposes.

Under a related law, all types of insurers in California—health, life, disability, automobile, and so on—must provide identical coverage to domestic partners and spouses. So if your employer offers health insurance benefits to spouses of employees, your domestic partner is entitled to those same benefits. The same goes for an auto insurance company that gives lower rates to spouses who jointly own their cars and share the same insurance policy.

Keep in mind, however, that for the most part, domestic partners are not considered married spouses under federal law.

Ending a California Domestic Partnership

The rules for terminating a domestic partnership changed dramatically with the new law in 2005. Before that, it took only a one-page form—signed by only one partner—to end a domestic partner relationship. Now, both members of almost all registered domestic partnerships will need to file a formal dissolution proceeding in court, just as heterosexual married couples do. You’ll have to exchange financial information and enter into a formal settlement agreement to divide your property and, if you have kids, set out a plan for coparenting. Similar procedures are in effect for marriage-equivalent registrations in other states.

This involves quite a bit of paperwork—but it doesn’t mean you have to go through a knock-down, drag-out divorce. The court will have to approve the termination of your partnership, but you and your partner can still agree on how you want to divide your property and debts, and deal with child custody and visitation. Mediation is a great option for making these decisions together. There’s more about mediation—and about what to do when a relationship ends—in Chapter 9.

If you registered in California and you live in another state when you break up, you can still terminate your domestic partnership in California if the courts in your new home state won’t recognize your partnership. But if neither of you ever lived in California, it’s unclear whether California law applies to your dissolution—for example, whether community property rules apply. And if you have children, terminating your partnership might be complicated by special laws about where custody cases can be heard. You’ll probably want to talk to a lawyer if you’re registered as California domestic partners but are living in another state.

NOTE: If you are registered and married to the same person, you should be able to terminate both forms of partnership in one legal proceeding. This is clearly an option if you live in a state that recognizes your partnership as equivalent to a marriage: if not, you may need to file a separate dissolution proceeding in the state where you registered.

 

Resource

You’ll need more information about dealing with assets and debts at the end of a relationship. Take a look at Nolo’s Essential Guide to Divorce, by Emily Doskow, and Divorce & Money, by Violet Woodhouse (Nolo), for detailed information about all aspects of divorce. The California Judicial Council website also has a great deal of information and advice in its self- help section, at www.courts.ca.gov.

Domestic Partners and Taxes

 

The advent of joint tax filing for domestic partners in California (and the other marriage and marriage equivalent states) brought with it a host of complicated questions. For example, if your domestic partner receives insurance benefits through your employment, your employer is responsible for tracking benefits for domestic partners and letting you know what was paid on behalf of your partner, and—unlike those of married spouses—those benefits are federally taxable. Also, in community property states, you may treat your total income as community property for state tax purposes, but not federal. On the other hand, you won’t be hit with the marriage penalty that often increases the income tax obligations of married spouses. It’s important that you consult a tax professional for advice about filing status and how to deal with income, employee benefits, exemptions, and the like.

 

Do I Have to Go to Court?

A few domestic partnerships can be terminated in California without court approval, but you must both agree to the termination, and all of the following things must be true:

There are no children of the partnership, and neither partner is pregnant.

You have been domestic partners for five years or less.

Neither of you owns any real property, either in California or anywhere else, and if you have a lease, it is not longer than a year and doesn’t include an option to purchase the property.

You don’t have debts of more than $4,000 that were incurred during the domestic partnership (not counting car loans).

You don’t have jointly owned assets (other than cars) that are worth more than $32,000, and neither of you has separate assets worth more than $32,000.

You and your partner have a written agreement about how you will divide your assets and debts, and you have signed any documents needed to accomplish the division.

You both give up any right to get support from each other.

You both have read and understood a brochure prepared by the California Secretary of State relating to the termination of your partnership.

If you meet all of these requirements, you can file a one-page form, called Notice of Termination of Domestic Partnership, to terminate your domestic partnership, and the termination will become final six months after you file the form with the Secretary of State. Otherwise, you will need to use a court process, as described in the main text. Same goes with most other marriage equivalent registrations.

A termination that is completed this way can be canceled by a court later if the court finds that all of the requirements listed above were not met. Either party can ask for a revocation of the termination within the six-month period after the notice of termination is filed, using a separate form called Revocation of Termination of Domestic Partnership. Usually, you would seek a revocation of the termination if you decided to get back together, or if one of you decided that you wanted a court to decide how to divide your assets.

 

Do I Have to Go to Court? (continued)

If only one partner wants to revoke the termination, he or she must file a form called Notice of Revocation of Termination of Domestic Partnership with the Secretary of State, and send a copy to his or her partner in the mail.

When you terminate your partnership by filing the one-page form with the Secretary of State, you don’t have the right to have a court make decisions about your property, and you can’t go back later and challenge the division or any other element of your agreement with your former partner—though you can sue to enforce agreements you and your partner made, if he or she is not following through on them.

 

Benefits for Domestic Partners

Employee Benefits for Domestic Partners

For many in the LGBT community, domestic partnership felt like “half a loaf ” of bread, while married folks got the entire package. Even though the whole loaf of bread is now available to all same-sex couples, hundreds of government entities and private businesses still offer valuable benefits to the domestic partners of their employees. If your employer is one of these enlightened companies, then you have the option of remaining unmarried and still getting benefits as a domestic partner. 

Finding companies that provide benefits. For useful links and information on domestic partnership benefits, including a list of major companies that provide domestic partnership benefits and a guide to getting your employer to offer domestic partner benefits, check out the Alternatives to Marriage project website at www.unmarried.org. At the Human Rights Campaign’s website you can check out the Corporate Equality Index to see how well private employers are doing in providing benefits. See www.hrc.org/campaigns/corporate-equality-index.

Finding public employers that provide benefits. Different employers offer very different benefits. Some offer only sick or bereavement leave when a domestic partner becomes ill or dies. Others provide benefits that are extensive—and expensive. They may include:

health, dental, and vision insurance

accident and life insurance, and

parental leave (for a child you coparent).

Even if an employer treats domestic partners just like spouses, the benefit may be less valuable to domestic partners because of the way tax laws are currently written. If the employer foots the bill for the partner’s health benefits, for example, the employee must pay federal taxes on the value of the benefit—while an employee whose spouse received these benefits would not be taxed. This is because the IRS considers benefits awarded to an unmarried partner as part of the employee’s taxable compensation (in contrast to benefits for spouses). An employer can compensate for this inequality by boosting the gross pay of workers who have to pay taxes on their domestic partners’ benefits, in order to make their net pay equal to that of their married counterparts. But now that the IRS recognizes same-sex marriages, you can avoid this problem altogether—at least when it comes to federal tax burdens—by getting married.

Qualifying for Employee Benefits

To qualify for domestic partner benefits, you must put your domestic partnership on record with your employer. Commonly, the employer provides a simple form (usually a sworn statement) for the employee and partner to sign. Usually, partners must state that they live together in an exclusive relationship and share the basic necessities of life and that neither is married to or in a domestic partnership with someone else.

If your relationship ends, you will need to file whatever documents are required to notify your employer that the domestic partnership no longer exists.

Employer forms aren’t binding contracts. Employer-provided domestic partnership forms often require that you and your partner state your intention to provide mutual support. But even if you sign an employer-provided application that says you promise to support each other, it’s generally not considered a legally binding commitment. In other words, your partner can’t sue you for failing to provide support as promised.

Limited Cobra Coverage for Domestic Partners

If you work for a company with more than 20 employees and you leave your job, you’re entitled to continue your health benefits, at your own expense, under the federal law called COBRA. If the company has fewer than 20 employees, you may still be entitled to continuation coverage under similar state laws. Under COBRA, employers are required to offer continuation coverage to spouses of employees who have health coverage, so if a married person leaves a job, the employee’s spouse is entitled to buy COBRA coverage.

Now that the federal government recognizes same-sex marriages, a same-sex spouse is entitled to federal COBRA continuation coverage, but as of today, registered domestic or civil union partners do not receive these benefits. The only exception is in states with marriage equivalent registration, where state-registered domestic partners can qualify for state COBRA coverage.

Other Benefits

Even if your employer doesn’t offer domestic partner benefits, other organizations with which you do business might. For example, airlines that used to let frequent flyers share accumulated miles only with their spouses now usually let you bring your domestic partner. Some airlines also will give discount bereavement fares to domestic partners. Many auto insurance companies offer discounted rates to cohabitants, especially if you co-own your cars.

Several kinds of institutions that used to offer membership discounts only to married couples, such as museums, health clubs, and public television stations, now offer them to any household, regardless of marital status or the gender of the partners.

Hundreds of colleges and universities now offer some type of domestic partnership benefits to students, staff, or both. For example, domestic partners may get the same housing rights and tuition reduction as do married students or employees.

WARNING: Now that marriage is available to lesbian and gay couples nationwide, we anticipate that many of the marriage-equivalent registration options will be shutting down. If the benefits are especially important to you, it’s essential that you keep track of the developments in this arena so you can act accordingly.

Making It Legal, and the Key Ramifications of Marriage

Now that same-sex marriage is available in every state, lesbian and gay couples are faced with a new decision: whether to get married. This will take some careful consideration, and below we cover a few basics you should know before you head down the aisle.         

Requirements for a Marriage License

To get a marriage license in any state, you must meet the minimum age requirement, not be married to anyone else, not be related by blood to your intended spouse, and in a few remaining states, have taken a blood test showing that you do not have communicable syphilis. When Massachusetts first allowed same-sex marriage, you had to be a Massachusetts resident unless you lived in a state that would recognize your Massachusetts marriage—but this is no longer the rule. None of the other states have residency requirements either (nor does Canada, which legalized same-sex marriage some years ago).

Marital Rights and Responsibilities

Once married, same-sex couples have all the rights and responsibilities granted to opposite-sex married couples. There are no special rules that just apply to lesbian or gay couples. And as of 2013, the federal government fully acknowledges same-sex marriages. The “bad old days” where same-sex marriages were only recognized in some states and didn’t receive federal benefits are over!

NOTE: Parentage isn’t necessarily secure. In most states, a child born into a marriage or registered domestic partnership or civil union is legally the child of both partners under state law. Both parents’ names can go on the birth certificate immediately, and the nonbiological or “second” parent has equal rights with the biological parent. Now that Section 3 of DOMA has been invalidated, the federal government should recognize the second parent with regard to Social Security, COBRA coverage, or other federal purposes. But not every state will recognize these parentage rights, so it’s still important that the second parent consider obtaining a legal adoption to ensure that the parent-child relationship is protected. There’s more about parentage in Chapter 4.

Ending a Legal Marriage

The days of being “wedlocked” are now a thing of the past. For years there were problems when a couple married in a marriage equality state wanted to end their marriage if they no longer lived in that state (or ever lived there). The only way to end a marriage is through divorce, and because some states would not recognize a same-sex marriage, it was difficult to get courts in those states to grant a divorce. Fortunately, with the national recognition of the right to marry came the equally important right to get a divorce.

Remember, most states have residency requirements for divorce, meaning that before you can even file for divorce you must have lived in a state for a certain period of time, usually six months to a year. (A few states have no residency requirements to start a divorce action, but they have special rules that you should consult before filing.) And once you file for a divorce, it typically takes at least six months—and probably longer—for your divorce to become final.

And it’s not just a question of having access to the court for a divorce. There is often the bigger quandary of whether you are fully treated as married when it comes to issues of parentage, money, and assets. In a divorce process, it may be in the financial or personal interest of one spouse to have the marriage-equivalent registration go unrecognized, in order to avoid sharing assets or parentage with his or her now-despised partner. It’s an unfortunate truth that some same-sex partners will ask courts not to recognize their registrations for that reason.

 

Caution

Don’t be a bigamist. If you are married or have registered for a marriage equivalent civil union or domestic partnership, check with a lawyer before trying to get married again anywhere else—to the same person or to someone else. If you have a marriage certificate, you are legally married and any marriage you enter into later will probably be considered invalid. If you have a marriage equivalent civil union or domestic partnership, you have a legal status that is equivalent to marriage, so you may also be guilty of bigamy if you marry someone else while the other legal relationship is still intact. It’s unclear what the legal consequences might be of marrying the same person with whom you have the previous marriage, domestic partnership, or civil union. At best, it won’t matter. At worst, you could find yourself in a complicated fight if you and your partner separate and end up in a dispute about which relationship is valid, your “date of marriage,” and which state’s laws you’ll use to end your relationship.

 

related topic

Chapter 3 has information about tax filing status if you are legally married and also addresses other practical issues about recognition of your marriage. Chapter 5 explains the effect of marriage on your status as parents, if you have kids.

Prenuptial and Prepartnership Agreements

If you want to marry or register but don’t want all of your state’s marriage or partnership rules to apply to you, you may be able to enter into a prenuptial or prepartnership agreement, but you’ll need a lawyer’s help.

Every state permits premarital or preregistration agreements. You can use a preregistration (or premarital) agreement to define your financial relationship by stating what property is separate and what is shared and providing for a customized division of property and payment of support should you separate.

Also, although you can use these agreements to divide property and money, and even define support obligations toward each other, you can’t make agreements in advance about child support, and you can’t make an agreement that releases either partner from the obligation to pay support for a child for whom the person is legally responsible.

Each state has its own rules about these agreements, and it’s crucial that you see a lawyer before preparing one—otherwise the agreement may not be enforceable. It’s especially tricky if you are getting married in one state, but plan to move to another state. Even though all states must recognize your marriage, your new state of residence may have different rules when it comes to enforcing premarital agreements.

If you’re already married or registered, but are concerned you might not want all of the provisions of the new law to apply to you, you can try preparing a postnuptial or postpartnership agreement. However, be particularly careful to find an attorney who is knowledgeable in this area. Postnuptial and postparternship agreements are strongly disfavored by courts and have even stricter rules than prenuptial or prepartnership agreements.

 

Resource

You can learn more about prenuptial agreements in Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving (Nolo).

Is Marriage (or Its Equivalent) Right for You?

Now that same-sex couples have the opportunity to enter into legal relationships that include important rights and responsibilities, you will have to decide whether marriage or a marriage equivalent domestic partnership or civil union is the best thing for you.

Even though you no longer have to endure all of the legal uncertainties that came with getting married under the prejudicial laws that were in effect until just last year, you should still consider the same pros and cons that every couple considering marriage should contemplate. For example, depending on your economic situation, marriage might be a positive or a negative move—remember, marriage means not just sharing assets, but also joint liability for debts and potentially the obligation to pay alimony if you break up. Also, marriage and divorce records are public in most states, so there’s no staying closeted once you tie the knot.

Marrying may cause you or your partner to lose state-provided public benefits, because your incomes will be counted.

Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action—quite often requiring the help of a lawyer.

In many states, assets acquired during marriage must be divided equally if the marriage ends; in community property states the partners’ earnings during the marriage are considered shared property unless you agree otherwise in writing. By contrast, if you are unmarried, your property is co-owned only if you have an agreement to make it so and have titled it jointly; and the same is true for debts and obligations. Transfers of property when a relationship ends are tax free for legally married couples, but not for unmarrieds, and probably not for most couples in domestic partnerships (although your state’s law may provide certain tax exemptions).

If you don’t marry, you will need to make sure that you write a will, create a trust, or designate your partner as beneficiary on your IRAs and other holdings, in order to pass assets at your death in the same way that spouses can (without any written documents). And certain tax benefits are forever denied to unmarried couples. For example, a surviving spouse generally inherits all the property if the other spouse dies without a will and has no children; this would be true for marriage equivalent relationships as well. However, at death, a bequest from one spouse to another is free from federal estate tax, regardless of its size. In some states, you can’t disinherit a spouse unless you have a preregistration agreement that addresses the issue specifically.

How Do You Want to Structure Your Relationship?

Even though many LGBT activists have worked for decades for the kind of social and legal legitimacy that marriage confers, plenty of people have mixed feelings about it. Some reject domestic partnership and civil unions as a “second-class” legal status. Others believe that marriage as an institution should be abolished, and the state should stay out of people’s private lives. There are also a great number of people who agreed all along that marriage should have been available to all, but they themselves would not marry—either because they prefer the freedom to make their own agreements about how to share their lives, without the encumbrance of the state’s requirements, or because marriage is not in their economic interest. Whether or not you feel ready to take on the responsibilities of marriage, you now have options that earlier generations of same-sex couples could only dream of. Explore these choices, learn about them, talk about them—and then make the decision that’s best for your family.

 

 

If you have children or hope to raise a family, marriage is probably the right option. Married couples by law have equal rights to raise their children, as well as equal obligations of support. If the relationship breaks up, both parents can seek visitation and custody, and if one parent dies, the other steps right in as the primary legal parent. The same is true for unmarried couples only if both are legal parents of the children. Otherwise, the second parent may be left out in the cold (see Chapter 9).

Consider these and other issues carefully and discuss them openly with your partner before you tie the knot or sign on the dotted line.

Special Issues When One Partner Is Transgender

For transgender folks, legal recognition of relationships has been a thorny issue in the past. A few courts have addressed the question of whether a marriage is valid when one of the spouses has had a sex change before the marriage. The results have been mixed: In California, New Jersey, and Louisiana, courts have ruled that marriages where one party is transgender are valid. (M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. 1976).) At least one court in Australia has reached the same decision.

But in Florida, Illinois, Kansas, Ohio, and Texas, courts have ruled the other way, finding that a person’s sex is determined at birth, and the marriages were void because the partners were actually of the same sex. (Kantaras v. Kantaras, (Fla. Dist. Ct. App., No. 2D03-1377, 7/23/04, reversing 2003 decision to the contrary); In re Marriage of Sterling Simmons, 355 Ill. App.3d 942 (2005); In re Estate of Gardiner, 42 P.3d 120 (Kansas 2002); Littleton v. Prange, 9 S.W.3d 223 (Texas 1999).)

The case of Littleton, however, was called into question by a trial court case in Texas. In a divorce between a woman and a transgender man, the wife tried to deprive the husband of his share of marital property on the basis that their marriage was void. The judge dismissed this claim, because the wife was aware of the husband’s transgender status, and because he had completed his gender reassignment and had a birth certificate and passport stating his male gender, both in place at the time of the marriage.

In an Ohio case, a Court of Appeals upheld the state’s denial of a marriage license to a couple because one partner was a female-to-male transsexual. The court refused to honor the would-be husband’s amended Massachusetts birth certificate showing his sex as male. (In re Application of Nash and Barr, Ohio Ct. App., No. 2002-T-1049, 12/13/03.) And the U.S. Citizenship and Immigration Services denied legal residency to a Filipino man who married a legal U.S. resident, because the wife was transsexual—despite the fact that her citizenship documents listed her sex as female.

As these cases demonstrate, there are two aspects of this problem. If an opposite-sex couple married and one partner later transitioned to the other sex, the partners are now the same sex. So, the question is whether their marriage is still valid.

As of June 2015, the good news is that the answer is always going to be yes, because same-sex couples can marry in all states. Moreover, as far as we know, there have not been any court cases deciding whether a marriage is valid after one person transitions to the other sex during the marriage. And, in many states, the validity of a marriage is determined at the time the marriage is created—so if the spouses were of different genders when they married, their marriage should still be legal even if one party transitions.

The other issue arises in cases where one spouse was transgender when the couple initially married as an opposite-sex couple. Some have argued that because same-sex couples couldn’t marry at the time the marriage was performed, if the trans partner’s original gender was considered his or her “legal” gender and it was the same as his or her partner, the marriage wouldn’t be considered legal. These sorts of legal problems tended to arise when an employer challenged the marriage in order to exclude one partner from a health insurance plan, or when one partner died and the other tried to collect survivor benefits or claim inheritance rights.

We do not anticipate this being a problem going forward, however, because the Supreme Court has invalidated all bans on same-sex marriage —rather than having them overturned by legislatures. When a law is tossed out by the Court as unconstitutional, the invalidity is viewed as being retroactive from the day the law was passed, as opposed to simply being invalid going forward. A similar rule applies to same-sex couples who got married in one state but were living in a state that didn’t recognize their marriage. Those prior bans on recognizing same-sex marriages have been ruled unconstitutional, and thus the marriages will be deemed valid and recognized from the outset.

As you can imagine, we can’t rule out the possibility that some state courts will disagree with our constitutional analysis, but eventually the issue should be resolved in favor of recognizing all marriages.

And what if a same-sex couple registers as domestic partners in California, where opposite-sex couples cannot register (unless one partner is 62 or older), and then one partner later transitions to the other sex? In effect, the partners are now an opposite-sex couple. Is their registration still valid? The answer is not so clear in this situation, since there haven’t been any court rulings invalidating the limits on who can register as domestic partners. If there is doubt about the validity of your registration, getting married is probably the best way to resolve those uncertainties.

The issues are complicated by the very nature of transitioning from one gender to another—at what point in the transition does a person become legally the other gender? Is it necessary to have sex reassignment surgery to legally change gender? What identity documents are necessary to confirm the gender change? How does the stage of the person’s transition affect the issue of relationship recognition? Legal rules about these questions differ from state to state.

Even though the core legal issues have now been resolved, the Transgender Law Center recommends that couples in which a partner is transgender consider taking a few additional steps beyond getting a marriage license. These include writing up and signing a Memorandum of Understanding before the marriage—stating clearly that the partners are aware of each other’s gender history and identity, and intend to be bound by all marriage rules and laws, including those relating to parenting. And prior to the birth of any children, these couples should also create a will or trust in favor of the partner, and prepare reciprocal powers of attorney for health care.

 

Resource

If you are a transgender person with a relationship recognition problem, you will need further information and assistance. The Transgender Law Center (www.transgenderlawcenter.org) can provide information and referrals to knowledgeable attorneys.

Adopting Your Partner

A handful of couples, unable to marry, used adoption in past decades to create a legally recognized relationship for themselves. The primary purpose for doing this was to guarantee inheritance rights between the parties.

Courts have allowed some adult adoptions between same-sex partners in the past. For example, courts in New York, California, and Delaware allowed same-sex adult adoptions in a few instances. A New York court, however, also denied a same-sex adult adoption application, holding that “the evasion of existing inheritance laws” was a main purpose of the adoption. (In re Adoption of Robert Paul P., 63 N.Y.2d 233, 471 N.E.2d 424 (1984).) And in Maine, a lesbian was unsuccessful in her attempt to void her 1991 adoption of her ex-partner. With the adoption intact, the partner can inherit through a family trust.

As marriage has become available all across the U.S, adoption—never a particularly desirable option— becomes even less attractive. You will likely face many barriers if you try to adopt your lover, including:

state laws barring adult adoptions—Alabama, Michigan, Nebraska, and Ohio all have such laws

incest statutes that prohibit sexual relations between an adoptive parent and child, and

laws specifying a minimum age difference between the adoptive parent and child.

In addition, many other factors should give you pause. As lesbians and gay men seek the right to raise children, adopting a lover may seem inappropriate—adoption connotes parent and child; to allow lovers to use it to confer legal status upon themselves is repugnant to some people. It also would preclude the two of you from getting married, which is likely a better solution to these sorts of problems. Also, adoption is permanent in most instances, removing the option of ending the relationship. (In rare instances, there may be grounds for rescinding an adoption decree.) Finally, adoption means that the court must terminate the parent-child relationship between the person to be adopted and his or her legal parents. For a lesbian or gay man with a positive relationship with parents, this could be destructive and insulting.

Keeping Up With Legal Changes

If the last few years are any indication, legal issues for same-sex couples will continue to make news, and more change is inevitable. The new laws nationwide are causing backlash.

Check the Nolo website at www.nolo.com for updates to this book, and also check FAQs and articles on LGBT issues.

For general information on issues affecting LGBT families, check these websites:

The National Center for Lesbian Rights at www.nclrights.org

Lambda Legal Defense and Education fund at www.lambdalegal.org, and

The Human Rights Campaign at www.hrc.org.

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DOWNLOAD FORMS - All forms in this book are accessible online. After purchase, you can find a link to the URL in Appendix A.

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