Same-Sex Families

Sunday, August 18, 2013

Two Months After SCOTUS's Landmark DOMA Ruling: Who is Married?

Section 2 of DOMA remains fully intact, and still permits individual states to disregard same-sex marriages.  Many experts are left scratching their heads over the question of how the federal government will ultimately decide whether or not a couple is married.  So will the federal government follow a "place of residency" rule or a "place of ceremony" rule?


Read more . . .


Tuesday, April 2, 2013

Amid Constitutional Challenge, A Chance For Same-Sex Couples to Recoup Overpayments in Taxes

April-15Last week, the United States Supreme Court heard two very important cases concerning the federal rights and benefits of LGBT individuals throughout the country.  In particular, the case of Windsor v. United States presents a very real opportunity for the Supreme Court to consider and possibly to strike down the Federal Defense of Marriage Act (DOMA).  The whole country is intently watching and waiting, and the outcome of the Proposition 8 case and the DOMA case will directly impact the LGBT community, particularly the federal rights of married same-sex couples.

DOMA Has Resulted in a Higher Tax Burden for Same-Sex Married Couples.

Since 1996, DOMA, the federal law which defines marriage as the legal union of one man and one woman, has resulted in the non-recognition of same-sex marriage for federal purposes.  As a result, many of the benefits afforded to opposite-sex married couples are denied to their same-sex counterparts.  Some of these benefits include Social Security Administration benefits, marital estate tax exemption, tax treatment of health insurance premiums, and most important for the purposes of this article, the filing of joint tax returns.

If DOMA is Held to be Unconstitutional, Same-Sex Married Couples May Be Entitled to Amend Previous Tax Returns to Obtain Refunds for Overpayments Made Under the Unlawful Act.

If DOMA is struck down by the Court, an outcome which appears to be at least somewhat likely, same-sex married couples who were excluded from filing joint income tax returns will have the ability to file amended income tax returns for the years they were legally married but did not have the ability to file jointly due to DOMA.

However, because federal income tax returns are only amendable for three years (or two years from the date the tax was paid), same-sex couples will lose their right to amend returns outside the time limitation unless additional steps are taken to protect the ability to amend in the future.

Same-Sex Couples Should Consider Filing a "Protective Claim" Now to Preserve the Right to Amend Returns Beyond the IRS's 3-Year Limit.

Because the IRS limits a taxpayer's right to amend previous returns to three years, one recommended solution to this problem is the filing of a “Protective Claim for Refund”.  Filing a Protective Claim now allows a taxpayer to file an amended return at some future date when the refund resulting from that amended return is contingent on some future event (such as the Court’s decision in the DOMA case).

For example, a taxpayer who believes she would be entitled to an additional refund for tax year 2009 may file a Protective Claim at any point prior to April 15, 2013, thus preserving her right to amend her 2009 tax return in the event that DOMA is overturned later this year.  As an article in The Tax Advisor explained in December, 2012:

[Tax preparers] should discuss with their same-sex married clients whether to file protective individual income tax refund claims with the IRS using the married-filing-jointly status and other tax benefits that are currently available to opposite-sex married taxpayers.

A protective refund claim can be submitted as a formal written claim or as an amended return on Form 1040X, Amended U.S. Individual Income Tax Return. A protective claim is filed by a taxpayer when the right to the refund is contingent upon the finalization of litigation proceedings such as the constitutionality of DOMA. A protective refund is filed for a taxpayer when the resolution of the litigation will extend beyond the statute of limitation for filing an accurate amended tax return (IRS Publication 556, Examination of Returns, Appeal Rights, and Claims for Refund, p. 14 (2008)).

The same-sex couple must be legally married under state law at the end of the year for which the amended return for the protective claim is filed. A document, such as a marriage certificate, confirming the marriage should be attached to the amended return.

In addition to the above article, Internal Revenue Service Publication 556 provides a helpful checklist for sames-sex couples who may be entitled to a tax refund if DOMA is overturned.  IRS Publication 556 reads, in relevant part, as follows:

Protective claim for refund.   If your right to a refund is contingent on future events and may not be determinable until after the time period for filing a claim for refund expires, you can file a protective claim for refund. A protective claim can be either a formal claim or an amended return for credit or refund. Protective claims are often based on current litigation or expected changes in the tax law, other legislation, or regulations. A protective claim preserves your right to claim a refund when the contingency is resolved. A protective claim does not have to state a particular dollar amount or demand an immediate refund. However, to be valid, a protective claim must:

  • Be in writing and be signed,
  • Include your name, address, social security number or individual taxpayer identification number, and other contact information,
  • Identify and describe the contingencies affecting the claim,
  • Clearly alert the IRS to the essential nature of the claim, and
  • Identify the specific year(s) for which a refund is sought.

Generally, the IRS will delay action on the protective claim until the contingency is resolved. Once the contingency is resolved, the IRS may obtain additional information necessary to process the claim and then either allow or disallow the claim.

Mail your protective claim for refund to the address listed in the instructions for Form 1040X, under Where To File.

Taxpayers who believe a Protective Claim for Refund may be beneficial should consult his or her tax adviser to discuss the possible advantages and disadvantages to filing a Protective Claim for Refund prior to April 15, 2013.


Tuesday, February 26, 2013

Social Security Benefits and DOMA: Know Your Rights, Protect Your Benefits

IRSAs we all know, the Defense of Marriage Act disqualifies same-sex married couples from the innumerable federal benefits of marriage, including social security benefits.  Two federal lawsuits are challenging the legality of DOMA, one of which is presently before the United States Supreme Court.

Boston-based GLAD (Gay & Lesbian Advocates & Defenders) has created a comprehensive resource for same-sex couples outlining the additional benefits that same-sex couples and their children would otherwise be entitled to in the absence of DOMA.  As GLAD's publication, "Social Security Benefits And the Defense of Marriage Act: Can I Do Anything Now to Preserve My Rights? YES", explains:

In the Social Security context, DOMA means that a person married to someone of the same sex cannot claim the Social Security benefits that might be due to a spouse, including:

• the spousal retirement benefit;
• the spousal disability benefit;
• the lump-sum death benefit; and
• the survivor benefit.

DOMA also can limit a child’s access to Social Security benefits. For example, when a married working parent dies, DOMA means that a child of the marriage may be denied benefits unless the worker is that child’s birth or adoptive parent or the family lives in a State where the child could inherit from that parent under the State’s intestacy law (this should include all States that permit same-sex couples to marry and Washington, D.C. as well as States that recognize marriages of same-sex couples from other states).

Download the Publication:  GLAD Social Security Benefits and DOMA

GLAD's publication also describes what same-sex couples can do now in order to preserve their access to social security benefits in the event that DOMA is either repealed or deemed unconstitutional, as many expect that it will be.  In some instances, the law mandates that an applicant apply for social security benefits within a specific time frame, for example within 2 years of the death of a spouse.  Under some circumstances, GLAD explains, it may make sense in certain circumstances to apply for benefits now - expecting your claim to be denied - in order to preserve important rights of appeal in the event that DOMA is overturned.

If you are in a position to access benefits under social security, and you believe that your right to benefits may be impacted by DOMA, reach out to your legal and tax professional.  GLAD encourages individuals to reach out to them with questions on their InfoLine: (800) 455-GLAD.

Vaughn-Martel Law also invites concerned individuals to contact our own Emily Towne McNeil to discuss your estate planning, including social security benefits to which you believe you may be entitled or how to preserve them in the event of a repeal of DOMA.


Wednesday, August 29, 2012

Manhattan Businessman Disinherits his Gay Son's Children; Legal Challenge Filed

As reported over the weekend by the New York Post, the son of a wll-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

As reported over the weekend by the New York Post, the son of a well-known Manhattan businessman has challenged a provision in his father's will that disinherits his grandchildren unless they are born to a heterosexual married couple.  According to the New York Post:

The edict surfaced in the will of Manhattan businessman Frank Mandelbaum, who specified that none of his money should go to any offspring his son Robert might have if he is “not be married to the child’s mother within six months of the child’s birth.”

Frank Mandelbaum, who died in 2007 at the age of 73, is the founder of the ID verification company, Intelli-Check.  The late Frank Mandelbaum's will prompted his son, Robert Mandelbaum, a Manhattan Criminal Court Judge, to challenge the estate and to argue

that his longtime partner Jonathan O’Donnell is the only 'mother' their 16-month-old son, Cooper, knows. The couple married shortly after Cooper’s birth via a surrogate, entitling the child to a share in a $180,000 trust set aside for Frank Mandelbaum’s three grandkids, Robert declared.

According to the New York Post, Frank Mandelbaum's wife, Ann Freeman, stated in court papers that her "husband's will specifically prohibited such a child from becoming a beneficiary."  Such a child!

According to Robert Mandelbaum, his Father was well aware that he was gay, and noted that his long-time partner, O'Donnell, was included in family dinners and vacations.  Now, Robert and his husband O'Donnell are fighting in court to prove that Frank's will is discriminatory and in violation of state law and public policy.

"Requiring a gay man to marry a woman ... to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy,” the couple's attorney, Anne Bederka, wrote in court papers. “There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

In Massachusetts, and many other states, the maker of a will may dispose of her property in any lawful manner, so long as such disposition is not repugnant to law.  An individual may lawfully place conditions on bequests in his will, such as graduating from college or refraining from alcohol, and those conditions should be carried out by the courts so long as they do not contravene some positive rule of law, or are against public policy.  Damon v. Damon, 312 Mass. 268 (1942).

However, conditions that amount to a complete prohibition on marriage will generally not be enforced by the courts, and partial restrictions on one's ability to marry will be upheld only if reasonable.  What qualifies as a total or partial prohibition, and what is a "reasonable restriction", is very much open to debate.  In Gordon v. Gordon, 332 Mass. 197 (1955), the Supreme Judicial Court of Massachusetts held that a testamentary provision which disinherited any beneficiary who did not marry a person born of the Jewish faith constituted an enforceable and reasonable partial prohibition on marriage.  After all, the beneficiary could marry any suitable Jewish person he liked!

Is a testamentary bequest that disinherits a gay child unless he or she marries someone of the opposite sex a reasonable partial restriction on marriage, or does it amount to a complete prohibition on marriage for that gay individual?

In the end, controversial restrictions such as Frank Mandelbaum's are very likely to cost the estate and all beneficiaries a significant amount of money, emotional pain, and legal fees.  When you are preparing your estate plan, be careful that you are restricting gifts for the right reasons and that you are not inviting costly challenges to your estate when you are gone.

 

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.


Read more . . .


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 4, 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.


Friday, September 16, 2011

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

Recent news out of a Texas family court has many people discussing how far this country still needs to go in recognizing the rights of same-sex couples and same-sex parents, and has Massachusetts lawyers reminding themselves that their clients are better off safe than sorry.

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.




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