Articles Posted in Same Sex Marriage

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On March 7, 2016, the United States Supreme Court unanimously and summarily reversed the Alabama Supreme Court on a same-sex adoption issue.
In the case, V.L. v. E.L., the parties were two women who were in a relationship from approximately 1995 until 2011. In 2002, E.L. gave birth to a child and in 2004, gave birth to twins. After the children were born, the parties raised them together as joint parents. All three children were adopted pursuant to a final decree of adoption from a superior court in Georgia. E.L. consented to V.L.’s adoption as a second parent and recognized both of the parties as the legal parents of the children. Continue reading

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The Oklahoma Supreme Court issued a decision on November 17, 2015 in the case of Ramey v. Sutton in which the biological mother in a same sex relationship wished to cut ties between her partner and child after their break-up which followed almost 10 years of co-parenting. In this case, after the couple split, the non-biological mother petitioned the district court for custody and visitation orders. The biological mother argued that no legal standing for such a request existed, as the parties were never married nor did they ever enter into a written parenting agreement regarding the child that they were raising together.

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same-sex-marriage

On November 3, 2015, CNN published an article titled “Couple seeks right to marry. The hitch? They’re legally father and son.” Yes, you read that correctly. As unbelievable as this headline may sound, there is a very interesting story behind this brief but controversial-sounding title.

The Supreme Court may have declared same-sex marriages legal in all states earlier this year, but getting to this point was a long and daunting road for same-sex couples. Many, including Nino Esposito and his partner Roland “Drew” Bosee (the couple who are the focus of the CNN article); never thought that they would see the day that same-sex marriage was legalized in their state. In their case, that state was Pennsylvania. So, after over 40 years as a couple, they decided to do something drastic.

 

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In recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. The Law Offices of Nancy J. Bickford is well aware of these important changes in the law.

On June 16, 2008, the Supreme Court of California held that California’s same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker’s ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.

same-sex-divorce-gavel.jpgOn that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive… It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations … It forces them to follow a complicated procedure to file their state and federal taxes jointly … It prohibits them from being buried together in veterans’ cemeteries.”

After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.

There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the “marriage” for purposes of spousal support?
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Litigation-hold-esi.jpgIf you have recently retained an attorney to represent you in your divorce proceeding, chances are that you already have or will soon receive what is known as a “litigation hold letter.” Although you will inevitably receive many other letters and forms at the onset of your divorce proceeding, it is important to pay close attention to this particular letter.

Family law attorneys will typically send their clients a litigation hold letter right after the attorney has been retained by the client. These written directives are also known as “preservation letters” or “stop destruction requests.” In anticipation of potential future litigation, a litigation hold letter or notice is essentially written instructions requiring that you preserve all documents and electronically-stored information (“ESI”) which could be relevant evidence. ESI refers to any information that is created, stored or utilized with computer technology. This includes emails, computer and network activity logs, digital recordings, voice mails, web-enabled cell phones and portable devices, internet files, computer drives, disks, CDs, etc.

Generally, the obligation to preserve evidence begins when a party knows, or reasonably should know, that the evidence is relevant to future or current litigation. In other words, the evidence is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, or is the subject of a current discovery request from the opposing party. Thus, if not already triggered, receipt of the litigation hold letter will trigger the duty to preserve relevant evidence.

litigation-hold.jpgThe scope of the hold depends on the specific facts of the case and what is likely to be at issue in future litigation. Typically, the hold will apply to all sources of data including emails, calendar entries, cell phones, accounting software, hard drives, thumb drives, contacts and task lists. Most documents today are in digital form, which is why preservation of ESI is particularly important. This does not mean that you have to save every single email or scrap of paper, but you should suspend routine destruction of documents and ESI as it relates to relevant evidence that might be useful to your opposing party. Even if your hard drive or phone breaks, for example, you need to refrain from disposing of it until your attorney says it’s okay.

If you have any questions before you delete anything or throw something away, you should speak with your attorney because there are severe penalties for what the court deems to be the destruction of evidence. You may be exposed to possible liability and sanctions. For instance, the Court may prohibit you from presenting certain evidence yourself, the court may decide issues without any input from you or the court may even make you pay for the recreation of the lost or damaged electronically stored information.
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parents-kid.gifOver the last few years many states have expanded the traditional idea of “family” by granting parental rights to parties under a variety of new circumstances. Now, non-married couples, same-sex couples, and even single parties can adopt children throughout the United States. Recently, a New York judge expanded the notion of family even further by holding that two friends (never involved in a romantic relationship) of different sexual orientation could adopt a child together. The new mother and father of an Ethiopian child do not even live together. Originally the mother wanted to have a child and the father offered to be a sperm donor. After the friends were unable to conceive, they decided to adopt a child together instead.

parents-adoption.jpgThe court’s decision to allow friends with no commitment to each other to adopt together has raised significant controversy. Among the opponents of the judge’s decision is Peter Sprigg, a senior fellow for policy studies at the Family Research Council. He asserts the position that the judge’s ruling puts the parent’s needs over and above the needs of the child. This position is based on Sprigg’s belief that the purpose of adoption is “to provide homes for children that resemble as closely as possible the natural family” and that “we would do better to stick with the rule of nature that children do best with a mother and a father who are married to one another”. Sprigg cites the level of commitment between married parents as a source of stability for a child and contends that that lifelong pledge will bind the parents together in such a way that cannot be replicated by friends.

Considering the reality that divorce is not a myth and is in fact quite common in the United States today, Sprigg’s position merits little credibility. Marriage is a lifelong commitment; however, for a variety of reasons, marriages end. Further, divorce can be one of the most traumatizing experiences a child goes through. If the parents are never married, the child will not experience a divorce. The New York Judge reasoned that the parents “have created a nurturing family environment…including a well-thought-out, discussed and fluid method of sharing parental responsibilities between their homes.” Regardless of their marital status, the Judge believed these two to be competent parents.

With so many parentless children worldwide, it is questionable why any parental arrangement is detrimental to the best interests of the child as long as the proposed parents do not pose a danger to the child’s emotional and physical wellbeing.
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Actress Jane Lynch recently settled her divorce proceedings and is actually on good terms with her ex, according to TMZ. Perhaps the reason for their civilized relationship post-divorce is because they resolved their issues through collaborative divorce thus avoiding the emotionally draining process of litigating divorce proceedings in court.

Many people are familiar with litigation and mediation, but not all are familiar with the process of collaborative divorce. That’s because collaborative divorce is a relatively new form of alternative dispute resolution which was developed in the early 1990s. However, collaborative divorce has grown rapidly since then because of its success in leading to healthier and more positive results throughout the divorce process.

couple-on-couch.jpgUnlike litigation, where the Judge makes the decisions regarding the parties’ divorce based on formulas created by the state, collaborative divorce gives the parties the authority and control to decide for themselves and focus on joint and creative problem solving, similar to mediation. The focus of collaborative divorce is to provide a healthy forum with a team of professions to help the couple reach a settlement that is in the best interest of the child and both parties, all while avoiding the uncertainty, expense and added stress that comes with litigating in court. Collaborative divorce also focuses on the future by teaching the parties to interact with each other in a respectful manner which will carry through their post-divorce relationship and co-parenting.

The expanded team of independent professionals who work as a team to be involved in collaborative divorce typically includes attorneys (each spouse has a trained collaborative attorney), child custody specialists, financial specialists, and licensed mental health professionals. Having so many professionals at your fingertips allows for more guidance and access to information which helps to lead to a more mutually beneficial outcome for everyone involved.

Typically, both spouses and their respective collaborative divorce attorneys sign a “Participation Agreement” which outlines their commitment to settle their divorce in a non-adversarial manner, work on their communication and interaction with one another, act in their children’s best interest to minimize emotional damage, retain neutral experts if necessary, and maintain status quo regarding children and assets throughout the collaborative process. The collaborative process requires both parties to dedicate themselves to working through their divorce with an honest and open mindset in which the welfare of their family is the top priority.

Although divorce is the end of a marriage, collaborative divorce can provide the parties involved with the opportunity for a healthy new start in which they are able to move forward with their lives and avoid the bitterness, anger and resentment that is often associated with a divorce.
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DOMA - Defense of Marriage ActThe Defense of Marriage Act (DOMA) was enacted on September 21, 1996 and permitted the states to refuse to recognize same-sex marriages legally entered into in other states. This means that under DOMA, if a same-sex couple who legally married in Hawaii moved to California, California would not be required to recognize the marriage and provide state benefits otherwise provided to married couples. In June 2013, the Supreme Court of the United States declared DOMA unconstitutional. In the aftermath of that landmark decision many same-sex couples are questioning whether they will receive any retroactive relief for the various benefits they were deprived of for nearly seventeen years.

New York legalized same-sex marriage in June 2011 and extended equal rights under estate tax law to legally married same-sex couples in July that same year. Estate tax rights were even extended to those married in other states before New York legalized same-sex marriage. However, federal laws prevented New York from implementing any retroactive application of the estate tax law. This problem came to light when Edie Windsor sued the IRS for denial of her right to inherit granted to other married couples. In 2009, Edie paid $363,000 in federal taxes upon the death of her spouse. As their marriage was not federally recognized under the tax code, she was unable to reap estate tax benefits available to married couples. The Supreme Court held Edie was entitled to a tax refund.

Same sex marriage wedding ringsSimilarly, since Massachusetts issued the first marriage license in the United States to a same-sex couple in 2004, wedded same-sex couples have been unable to file joint federal tax returns. Although a same-sex couple may be married under the laws of their home state, they were unable to claim any federal tax benefits. Now that such federal tax laws have been overturned, same-sex couples question whether they can retroactively realize federal tax benefits back to the date of their marriage.

In general, a tax refund can be claimed within three years of filing the incorrect tax return or within two years of the overpayment. Under this common rule, same-sex married couples may be able to collect overpaid taxes for the past three tax years. Some have rumored that the IRS will extend this typical statue of limitations to allow same-sex married couples to collect tax refunds even further back.

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