Same-Sex Families

Thursday, March 22, 2012

Tax Alert: Same-Sex Couples Should Demand Federal Adoption Credit

As individuals and families throughout the country begin to prepare and file tax returns for 2011, tax experts seem to agree that same-sex couples with children may be ignoring a significant tax benefit -- the federal adoption credit.

Friday, February 24, 2012

'Til Death Do Us Part: State Residency Requirements and the Gay Divorce Dilemma

Background.  Since Massachusetts legally recognized the right of same-sex couples to marry in 2004, tens of thousands of couples from around Massachusetts and around the country have tied the knot here in the Commonwealth.  As we know, the status of marriage provides countless benefits to gay and straight couples alike in areas ranging from inheritance and property rights, governmental benefits and privileges, to child custody and parental rights, just to name a few.  But one of the most important (and often overlooked) benefits of same-sex marriage is actually same-sex divorce.  Divorce provides both parties in a relationship the benefits of an orderly division of property, assets and liabilities, and promotes the fair and equitable treatment of both spouses in the event of a breakup.

While many same-sex couples have remained here in Massachusetts, some married gay couples have either returned to their home in another state, or moved out-of-state to pursue employment or other opportunities.  If you were married here in Massachusetts and moved your family to another state, you may have left one very important thing behind: your marriage!

Our office is contacted increasingly often by out-of-state couples who were married in Massachusetts and who now want to obtain a same-sex divorce.  In many cases, both spouses are in complete agreement and ready to cooperate in order to obtain a divorce.  Their question to me:  Can we file for divorce in Massachusetts? The answer:  Probably not.

Massachusetts Case Law Concerning the "Residency Requirement".  This dilemma recently played itself out in the case of Francesca Cerutti-O'Brien v. Donna-Marie Cerutti-O'Brien.  Francesca and Donna-Marie were married in Truro, Massachusetts,  in November, 2006.  At the time of their marriage, Francesca was a shop-owner and resident of Massachusetts, and was making routine trips to be with her partner, Donna-Marie, in Florida.  Less than one month after the marriage, the couple bought a home together in Florida, with plans to open up a shop in Florida and spend summers in Massachusetts together.  Despite marital counseling, the marriage quickly soured and, according to court papers, suffered an irretrievable breakdown in Florida on June 19, 2007.  Francesca filed for divorce here in Massachusetts on June 27, 2007.

On the eve of their divorce trial, Donna-Marie moved to dismiss Francesca's divorce complaint on the basis that the Massachusetts Courts could not grant a divorce to the couple because neither of them was domiciled here in Massachusetts.  The Court agreed and dismissed the divorce.  Francesca appealed.

On review, the Appeals Court affirmed the Probate and Family Court's dismissal of Francesca's complaint for divorce.  Under Massachusetts Family Law, the Probate and Family Court can only hear divorce cases in which the grounds for divorce occurred in another state if:  (1) the spouses once lived in Mass, AND one of the spouses resides in Mass at the time the complaint is filed, OR (2) at least one of the spouses has resided in Massachusetts for at least one year prior to filing.  After all, if the grounds for divorce occurred in Florida, and the parties reside in Florida, then Florida is the most appropriate venue for the divorce, right?  Not necessarily!

The Dilemma for Married Same-Sex Couples.  The dilemma for many married same-sex couples is that their state of domicile will not grant them a divorce because it will not recognize their marriage.  After all, one of the prerequisites for obtaining a divorce is proving that you are married in the first place.  In a majority of states across the country, same-sex couples will not be able to establish the existence of a valid marriage.  And as many couples have discovered, the state that granted them a marriage now lacks the power  to grant them a divorce on account of the residency requirement.

Frustrated yet?  Consider this:  every time you re-enter Massachusetts, or any of the growing number of states or nations that recognize a Massachusetts gay marriage, you may be considered married in that state for purposes of inheritance, property ownership, medical decision-making, taxes, employment, military eligibility, etc.

Until each and every state recognizes gay marriage, or will at least agrees to grant a divorce to married same-sex couples within its borders, this dilemma represents another undue and heavy burden on LGBT couples and families.  I strongly recommend that same-sex couples who are thinking of becoming married here in Massachusetts sit down with an attorney who focuses in LGBT legal issues, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth, whether a prenuptial agreement might be enforceable and provide a proper framework for dissolution of your relationship in a hostile state, or whether and how you might meet the Commonwealth's residency requirement for divorce.

Wednesday, January 04, 2012

Lesbian Custody Battle: Florida Court Orders Birth Mother to Share Custody with Genetic Mother

As reported by the Orlando Sentinal, the 5th District Florida Court of Appeals has ruled that a birth mother must share custody of the child that was conceived with her lesbian partner's eggs, and that Florida' s laws relating to egg donation were unconstitutional as applied to the two women.

By way of background, the case involves a same-sex lesbian couple who had been in a committed relationship for 11 years, and who decided to conceive and to have a child together.  After learning that one of the women, a 39-year-old law-enforcement officer, was infertile, it was decided that the other woman, then 34 and also a law-enforcement officer, would donate her egg to be fertilized. The fertilized egg was then implanted in her partner's womb, and a baby girl was born the first week of 2004.

Three and a half years later, and following the separation of the two women, the birth mother disappeared with the child, leaving the country without telling her former partner where they had gone.  Eventually the egg-donor mom tracked them down in Queensland, Australia.

The egg-donor/genetic mother brought a petition under Florida law asking the court to, among other things, declare that she was the legal mother of the child, grant her custody of the child, and order a corrected birth certificate identifying her as the parent.  Section 742.14 of Florida law - concerning the donation of eggs, sperm, or preembryos - reads in relevant part:

The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement [... ], shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.

Applying existing Florida law, the trial court judge DENIED the genetic mother's requests for parental recognition, writing:

Same-sex partners do not meet the definition of commissioning couple.  There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances.  I do not agree with the current state of the law, but I must uphold it.  I believe the law is not caught up with science nor the state of same-sex marriages.  I do think that is on the horizon.

The trial court judge acknowledged that family planning options were limited to the lesbian couple when they decided to have and raise a child together, including the option to get married and to establish parenthood by adoption.  The trial court judge wrote presciently, "If you appeal this, I hope I'm wrong."  The genetic mother appealed.

On appeal, the 5th District Court of Appeals  in Florida did indeed reverse the lower court's decision, holding that Florida's existing interpretation and application of Section 742.14 to the genetic mother was unlawful and violated her rights under the Florida and United States constitutions.

In reaching its decision, the appeals court brushed aside the birth mother's argument that the genetic mother was a "donor" under Section 742.14, and therefore had relinquished her parental rights.  After examining the factual record and noting that the statute did not specifically define "donor" , the judge wrote:

Based on the uncontradicted facts, [the genetic mother] would not be a donor under this definition because she did not intend to give her ova away.  Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth. from her ova and was a mother to the child for several years after its birth.

The appeals court also disregarded the birth mother's argument that Florida's laws prohibiting adoption by same-sex couples barred recognition of parenthood by the genetic mother, stating:

[W]e do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child.

In its opinion, the 5th District Appeals Judge requested that the Florida Supreme Court decide a narrow constitutional question:  whether a woman in a lesbian relationship who gives her egg to her partner in order to have a child give up her parental rights to the child.

The Judge also sent the case back down to the trial court to make an appropriate order of custody, visitation, and support, but not before making an important philosophical comment on the court's role in parenting cases:

Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [birth mother] or [genetic mother] an exception that places those rights in one to the exclusion of the other.  It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [birth mother] or [genetic mother].  Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.

Read the appellate opinion of Judge Sawaya in the case of T.M.H v. D.M.T. in its entirety here:  http://www.5dca.org/Opinions/Opin2011/121911/09-3559.op.pdf

Thursday, December 29, 2011

District of Columbia Considers "Same-Sex Divorce" Bill

As reported by the Washington Post, District of Columbia council member Phil Mendelson has introduced a bill with the support of 13 other council members that would allow same-sex couples who were married in the District and later moved away to obtain a divorce without meeting the District's six-month residency requirement.  The "Civil Marriage Dissolution Equality Amendment Act of 2011" was introduced in October, 2011, and has yet to be voted on.

The importance of divorce should not be underestimated.  While marriage provides countless benefits to gay and straight couples alike, divorce provides both parties in a relationship with the protections and benefits of an orderly division of property, assets, and debts, and promotes the fair and equitable treatment of both spouses.

Most states have residency requirements which attempt to prevent divorcing couples from 'shopping around' for the most favorable place to dissolve their marriage.  These residency requirements encourage divorcing couples to litigate their disputes where they actually live.  But unlike opposite-sex couples, married same-sex couples can only divorce in one of the handful of states that recognize their marriage.  This creates an unintended hardship on married same-sex couples, who are denied the right to obtain a divorce in their state of residency and by the state that granted their marriage in the first place.

Many states do not have legal mechanisms for same-sex divorce, leaving divorcing couples who married in the District but now live elsewhere in a bind. Washington-based family law attorney Sebastian Krop said that for many couples wishing to divorce, returning to the District to wait out the residency requirement isn’t an option.

Massachusetts, which recognized the right of same-sex couples to marry in 2004, has a one year residency requirement for couples who wish to divorce.  Our office frequently gets calls from married couples throughout the country who are unable to obtain a divorce in their state of residency, and who now seek to return to the place of their marriage to obtain a divorce.  Most are unwilling or financially unable to uproot their lives and return to Massachusetts to meet the state's one year residency requirement.

From state to state, same-sex divorce laws are a patchwork or nonexistent. For instance, a couple who married in the District but are separated in Virginia — a state that does not recognize same-sex marriage — would not meet residency requirements for divorce in the District.

Robin Maril, legislative council for administrative advocacy for the Human Rights Campaign, said that many early versions of same-sex marriage legislation didn’t provide for divorce. An easier process to complete divorce should be added, she said.

Until each and every state recognizes same-sex marriage, this dilemma represents another undue and heavy burden on LGBT couples and their families.  I propose that the Massachusetts legislature modify Massachusetts General Laws Chapter 208 Sections 4 and 5 to allow same-sex couples who were married here in Massachusetts, and find themselves barred from obtaining a divorce in their current state of residency, to obtain a divorce here in Massachusetts.

Until such a change occurs, same-sex couples who are thinking of becoming married here in Massachusetts should sit down with an attorney who focuses in LGBT legal issues, including LGBT family law, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth.

Read the full text of the proposed Bill here:  Civil Marriage Dissolution Equality Amendment Act of 2011.

Tuesday, December 13, 2011

Downloadable Brochure: Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts

Vaughn-Martel Law has released a brief downloadable brochure entitled:  Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts.

Generally, Adoption refers to the legal process of creating a legal parent-child relationship where previously one did not exist.  Co-Parent Adoption (also called "Second-Parent Adoptions and similar to Step-Parent Adoption) refers to the joint adoption of a child by two parents, one of whom is already biologically or legally related to the child.  The brochure briefly answers some basic questions like, "Who Needs Co-Parent Adoption", "Is a Home Study Required", and "Do We Need to Terminate Our Sperm or Egg Donor's Rights".

The Co-Parent Adoption process has been used by same-sex parents throughout Massachusetts to establish a legal and binding parent-child relationship in  a non-biological parent.  Even married couples who are both listed as presumptive parents on a birth certificate in Massachusetts should file for adoption to ensure that their legal parentage will be recognized in states that are hostile to same-sex relationships.

To determine whether a Co-Parent Adoption is right for you and your family, download our our free informational brochure, and contact one of the reproductive law attorneys at Vaughn-Martel Law.  We're always happy to answer any questions you might have.

Friday, September 16, 2011

Texas Court Ruling a Reminder to Same-Sex Parents: Plan for the Worst

As reported by the Advocate, a heterosexual couple in the state of Texas divorced after having three children.  The mother was awarded custody of the children. The father, William Flowers, eventually re-married Jim Evans, a man, in Connecticut, and they traveled back to Texas to live.

After the father’s re-marriage, he attempted to obtain custody of his children in a Texas family court.  Texas bans the recognition of same-sex relationships, including Flowers’s Connecticut marriage to Evans.  The Judge, on top of denying the father custody, ordered that the father could never leave his children with any man who isn’t part of the family without Mother’s permission.  The Judge eventually changed the wording to read “any person not related to the children”, but this superficial change did nothing to assuage the GBLT media, GBLT activist groups, and lawyers all over the country.  It especially did nothing to ease the pain and indignity felt by Flowers, Evans, and their family.

This story out of Texas is a harsh warning to gay and lesbian families in states, including Massachusetts, that recognize same-sex marriage and same-sex parenting rights.  It is also a reminder to attorneys of the critical importance of making sure clients put in place all possible safeguards in order to protect their families.

Same-sex families in Massachusetts need to take every legal step available to protect their marriage and their children, so that in the event that they, their spouse, their property, or a loved one ends up within the jurisdiction of a hostile state like Texas, their relationships and property will be protected.

Important legal protections available to same-sex couples (and opposite-sex couples) include preparing a comprehensive estate plan, with property and healthcare directives, preparing domestic partnership or property ownership agreements, preparing co-parenting agreements, and petitioning for a decree of adoption of their spouse or partner’s children, among others.

The current non-uniformity of patchwork state laws concerning the recognition of same-sex relationships and families makes it all the more important for gay and lesbian families to start a relationship with a GLBTQ family practitioner and take full advantage of the legal protections offered to them.  While it is infuriating and unjust that same-sex couples must endure the cost and complexity of additional planning to protect their families, it is better to be safe than sorry.