A Legal Guide for Lesbian & Gay Couples

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Protect your rights -- protect your relationship!

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Overview

Protect your rights -- protect your relationship!

Now more than ever, it's important that you take the proper legal steps to define and protect your relationship in the eyes of the law. If you don't, you run the risk of being shut out of each other's lives -- and the lives of children you co-parent -- in times of medical, financial or personal crisis.

This practical, plain-English guide shows lesbian and gay couples how to:

  • make practical decisions about living together

  • obtain domestic partner benefits

  • make medical decisions for each other when needed

  • take care of each other's finances when one partner is incapacitated

  • leave property to each other

  • have and raise children through adoption, donor insemination, surrogacy or foster parenting

    The 14th edition is updated to provide the latest information on same-sex marriage, civil unions and domestic partnerships in the U.S., Canada and around the world. It also includes a CD-ROM that helps you create essential legal documents.
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Editorial Reviews

Bay Area Reporter
A guide that lovers will do well to embrace. Buy this book.
Curve
A good primer for couples wanting basic legal advice on domestic partnerships, parenting, making financial and medical decisions, buying a home together, and estate planning.
Los Angeles Times
The edge of the law... will be much less fearful for those who have this book.
Modern Maturity
Excellent, comprehensive reference.
San Francisco Chronicle
Informative for any unmarried couple.
ACLU
Most legal guidebooks -- including those written for lawyers -- ignore lesbian and gay couples. For almost 20 years, this has been the outstanding exception, and it remains the standard for lesbians and gay men who want solid, basic answers.
— Matt Coles
Human Rights Campaign
This book provides a legal roadmap for anyone looking for guidance towards protecting his or her family. I commend its authors for making available this important information.
— Elizabeth Birch
Policy Institute of the National Gay and Lesbian Task Force
This first-rate guide demystifies the legal process and provides an invaluable resource for gay and lesbian people engaged in the process of family creation.
— Urvashi Vaid
Los Angeles Times
The edge of the law will be much less fearful for those who have this book.
Curve
A good primer for couples wanting basic legal advice on domestic partnerships, parenting, making financial and medical decisions, buying a home together, and estate planning.
Bay Area Reporter
A guide that lovers will do well to embrace. Buy this book.
Los Angeles Times
"The edge of the law will...be much less fearful for those who have this book."
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Product Details

  • ISBN-13: 9781413306293
  • Publisher: NOLO
  • Publication date: 8/2/2007
  • Edition description: Book and CD-ROM
  • Edition number: 14
  • Pages: 344
  • Product dimensions: 7.00 (w) x 9.00 (h) x 1.00 (d)

Meet the Author

Denis Clifford, a graduate of Columbia Law School, where he was an editor of The Law Review, is a lawyer who specializes in estate planning. He is the author of many Nolo titles including Quick and Legal Will Book, Nolo's Simple Will Book and Make Your Own Living Trust and co-author of Plan Your Estate and A Legal Guide for Lesbian and Gay Couples. He has been interviewed by such major media as The New York Times, Los Angeles Times, and Money Magazine.

Frederick Hertz is a practicing attorney-mediator and the author of Legal Affairs: Essential Advice for Same-Sex Couples (Owl Books) and co-author of Nolo's Living Together: A Legal Guide for Unmarried Couples and A Legal Guide for Lesbian & Gay Couples. He lives and works in Oakland, California.

Emily Doskow is a practicing attorney and mediator who has been working with families in the Bay Area for more than 15 years, as well as an author and editor for Nolo. She specializes in family law, including adoption, parentage issues, domestic partnership formation and dissolution, and divorce. She is a graduate of the Boalt Hall School of Law at the University of California at Berkeley and currently resides in Oakland.
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Read an Excerpt

Introduction
Every year, thousands of heterosexual couples get married without giving a second thought to the legal ramifications of their decision. Most assume they will share their finances while they're married, and often one partner supports the other. They own property together; often one partner owns property before the marriage and adds the new spouse to title after they marry. They give each other gifts, sometimes very expensive ones. They have children and no one questions each spouse's legal relationship with those children. If they divorce, they assume the court system will accommodate their legal needs. They transfer property between themselves to settle the divorce without any concern about tax consequences.

You, on the other hand, cannot afford to enter into a legal relationship with your partner without considering the financial and legal consequences. While your state's law may give you the same rights and responsibilities enjoyed by heterosexual married couples, the lack of recognition by the federal government is a distinction that makes all the difference. It's critical that you understand the law in your state and that you consider carefully the decision to enter into a marriage or marriage-like relationship.

For example, let's say that you and your partner live in Connecticut. You know that you have the right to enter into a civil union, but you have no idea what that really means. If you do it, will you be responsible for each other's debts? Will you have to share your income? Will you file joint tax returns? If you have children, will you both be legal parents? If you break up, who gets what, and who decides? Your partner is gung-ho aboutbecoming legal partners, believing that it would demonstrate your commitment to each other, make a political statement about same-sex relationships, and make your lives better. You're completely committed to the relationship, but you wonder about the details of the civil union relationship -- and you're not sure it's the best option for the two of you.

What should you do? First, review the material below to learn the basics about how your state law treats same-sex couples who enter into legal relationships. Next, talk to a lawyer about how the rules would apply to your particular circumstances. Find out whether a written agreement signed before your civil union would protect you from the elements that you don't want, while allowing you the benefits that would work for your relationship. Talk with your partner about what you learn, and make an informed decision about what you want to do.

This chapter discusses the seven states with marriage or marriage-like relationships, beginning with Massachusetts, currently the only state that allows same-sex couples to marry. The chapter also covers marriage-like relationships in California, Connecticut, Hawaii, Maine, New Jersey, and Vermont, and brand new same-sex relationship laws in New Hampshire, Oregon, and Washington.

There are some things you should keep in mind no matter which of these states you live in:

Having the same rights as married couples in your state does not translate over to federal rights. The federal government does not recognize a Massachusetts marriage nor a domestic partner registration or civil union in any other state. This means that none of the over 1,000 federal rights that go along with marriage apply to same-sex couples, no matter how significant their legal relationship is under state law. For example, same-sex couples cannot take advantage of Social Security benefits, immigration privileges, or the marriage exemption to federal estate tax.

If you want to marry or register but don't want all of your state's marriage rules to apply to you, you may be able to enter into a prenuptial or pre-registration agreement -- but you'll need to consult a lawyer. Every state that recognizes same-sex relationships also permits prenuptial or pre-registration agreements. You can use a pre-registration agreement to define your financial relationship by stating what property is separate and what is shared, and providing for division of property and payment of support should you separate. Each state has its own rules about pre-registration agreements, and it's crucial that you see a lawyer before preparing an agreement. If you want to learn more about pre-registration agreements, see Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving (Nolo). If you live in California, you should also use Prenups for Partners: A Guide for California Domestic Partners, by Katherine E. Stoner (available as an eGuide download from Nolo).

People who are in the military should be cautious about entering into legal relationships. For members of the military, marrying a same-sex partner or registering as domestic or civil union partners can have serious consequences -- it's likely that doing so would constitute "telling" under the current "Don't Ask, Don't Tell" policy. If you're in the military and want to marry or register, take the time to talk with an attorney first -- one with some expertise in the area of military law.

Immigration issues and public benefits are also red flags that may mean it's better not to register. If one partner is not a U.S. citizen and is either undocumented or here on a nonimmigrant visa, it's probably not a good idea to register as domestic partners. Registering might be considered evidence of intent to stay permanently in the U.S., which is not allowed if you are on a nonimmigrant visa. In addition, if either partner is on public benefits like SSI or Medi-Cal, domestic partner registration could cause more trouble than it's worth. If you're in any of these situations, talk to a lawyer before you register.

Parentage isn't necessarily secure under federal law. In all of the states listed in this chapter except for Hawaii and Maine, a child born into a marriage or registered domestic partnership or civil union is the child of both partners under state law. Both parents' names can go on the birth certificate immediately, and the non-biological or "second" parent has equal rights with the biological parent. However, the federal government may not recognize the second parent as a parent for purposes of Social Security, COBRA coverage, or other federal purposes, so it's still important that the second parent use a legal adoption procedure to ensure that the parent-child relationship is protected. There's more about parentage in Chapter 5.

Use a court procedure to change your name. Although all states allow married people to change their names upon marriage without a court proceeding, there is still discrimination against same-sex couples when it comes to name changes. If you want to be sure that your name change is legal, use a court procedure.
Same-Sex Marriage in Massachusetts
In November 2003, the Massachusetts Supreme Court ruled that the state's ban on same-sex marriage violated the state constitution and that civil marriage licenses must be made available to same-sex couples. The ruling took effect on May 27, 2004, when city and town clerks in Massachusetts began issuing marriage licenses to qualified applicants regardless of sex. In the two-and-a-half years that the law has been in effect, more than 7,300 same-sex couples have married. (Forty-five divorces have also been reported.)

While efforts to turn back time are continuing, as yet the opponents of same-sex marriage have not managed to get a vote on a proposed constitutional amendment to ban it. In late 2006 the Massachusetts Supreme Court declined to order the legislature to take such a vote.

Requirements for a Marriage License

To get a marriage license in Massachusetts, you must be 18 or older, not married to anyone else, not related by blood to your intended spouse, and have taken a blood test showing that you do not have communicable syphilis. In addition, you must be a Masschusetts resident unless you live in a state that would recognize your Massachusetts marriage -- at this point, 40 states have DOMA laws, so that's only a handful. This requirement is based on an old law that same-sex marriage opponents dusted off in order to prevent couples from other states from flocking to Massachusetts to marry. (There is also a residency requirement to divorce in Massachusetts -- see below.) Rhode Island is so far the only state to issue a legal opinion stating that same-sex Rhode Island couples may marry in Massachusetts, because nothing in the state's own law would prohibit same-sex marriage.

Rights and Responsibilities

Once married in Massachusetts, same-sex couples have all the rights and responsibilities granted to all married couples in the state. But the federal government continues to refuse to acknowledge same-sex marriages, so the federal benefits of marriage are still unavailable.

The ramifications of the Massachusetts ruling are enormous, and will continue to affect couples for many years. Undoubtedly, some married couples will move from Massachusetts for work or personal reasons, and attempt to enforce their marriage in their new home state. This raises the constitutional issue of "full faith and credit." The United States Constitution says that marriages in one state must be recognized (given full faith and credit) by all other states. At the same time, the federal DOMA says that same-sex marriages in one state do not have to be recognized in other states. Many states have passed their own DOMAs banning recognition of same-sex marriages from out of state. And a depressing number of states have passed constitutional amendments prohibiting the state from recognizing same-sex relationships of any kind from other states.

Ending a Massachusetts Marriage

Another important issue is how couples married in Massachusetts can end their relationships if they no longer live there. The only way to end a marriage is through divorce, and because some states will not recognize a Massachusetts marriage, it may be difficult to get a court to grant a divorce in another state. And lest you think you can just return to Massachusetts to get a divorce, be aware that Massachusetts, like most states, has a residency requirement for divorce. Before you can even file for divorce there, you must have lived in the state for at least a year. After filing it takes at least six months and probably longer for a divorce to become final.

The divorce question also turns on the issue of recognition, and as noted above, that issue will be litigated over time. There are really no answers to these questions as yet -- but see below for ways that you can keep up to date on what is happening in this quickly changing area of the law.

Relationship Recognition in the Workplace

Marriage in Massachusetts raises a whole set of issues for employers and employees. Pension and retirement benefits are generally governed by federal law, but employers sometimes have to look to state rules to make decisions about benefits. Massachusetts employers are required to offer non-federal benefits for all married couples, whether they are of the same or opposite sex.

The conflict between Massachusetts's marriage law and the federal Defense of Marriage Act will undoubtedly lead to litigation before too long, as will the refusal of some employers to provide marital benefits to the same-sex spouses of Massachusetts employees. (A recent survey indicated that while the majority of Massachusetts employers already provide health benefits to same-sex partners and will continue to do so, only about 35% intend to provide retirement benefits equivalent to those provided to opposite-sex spouses, despite the new marital rights that those employees enjoy.)
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Table of Contents

Introduction

A. Why Same-Sex Couples Need This Book
B. 25 Years of Progress: The More Things Change...
C. How We See Our Relationships
D. Using the Forms in This Book
E. Icons Used in This Book

1. Creating Family: Marriage, Domestic Partnership, and More

A. Defining Family
B. Domestic Partnership
C. Marriage-Like Relationships in California and Vermont
D. Relationship Recognition in Hawaii, Maine, and New Jersey
E. Can You Get Married?
F. Creating Marriage-Like Relationships by Contract
G. Special Issues When One Partner Is Transgender
H. Adopting Your Partner
I. Ending a Relationship
J. Keeping Up With Legal Changes

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

A. Cash and Credit
B. Insurance
C. Name Changes
D. Foreign Lovers: Visits and Immigration

3. Renting a Home Together

A. If a Landlord Discriminates Against You
B. Sharing a Rental
C. Sharing One Partner's Rented Home
D. Renter's Insurance
E. Moving On
F. Public Benefits and Living Together

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

A. Legal Parents and the Second Parent Trap
B. Having a Child
C. Adopting a Child
D. Foster Parenting
E. Becoming a Guardian
F. Agreements With Teenagers

5. Medical and Financial Matters: Delegating Authority

A. Health Care Decisions
B. Physician-Assisted Suicide
C. Burial and Body Disposition
D. Estate Planning Note
E. Durable Power of Attorney for Finances

6. Looking Ahead: Estate Planning

A. Death and Living Together Contracts
B. Wills
C. Estate Planning Beyond a Will

7. Living TogetherContracts for Lesbian and Gay Couples

A. Living Together Contracts Are Legal
B. When You Need a Living Together Contract
C. What to Include in a Living Together Contract
D. Sample Living Together Contracts
E. Modifying Your Agreement
F. Beware the Tax Man!

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

A. Finding a House
B. How Much House Can You Afford?
C. Proceeding With Your Purchase
D. Taking Title to Your New Home
E. Contracts for Home Purchase and Ownership

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

A. Breaking Up: An Overview
B. The Separation Process: What to Do
C. Ideas for Solving Some Common Problems
D. Domestic Violence in Same-Sex Relationships
E. Dissolving a Marriage

10. Help Beyond the Book

A. Hiring a Lawyer
B. Doing Your Own Legal Research
C. Legal Organizations

Appendix: How to Use the CD-ROM

Index
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