Nontraditional Family Law

Why Research Matters - a Perspective on LGBT Research

Abbie E. Goldberg, Ph.D., as guest author, provides information on why it is important for you to participate in research if you are LGBT.  Abbie writes:

 

When I started researching lesbian parenthood, about seven years ago, I quickly learned that I was entering a field in which any research that I produced had the capacity to be used for good or misinterpreted for evil. Studies that demonstrated the positive adjustment of children of lesbian and gay parents are cited repeatedly in courtrooms, as evidence as to why it is not fair to deny a parent custody on the basis of his or her sexual orientation (i.e., in divorce proceedings). At the same time, critics of gay/lesbian parenting have often argued that the flaws in these studies preclude us from drawing these conclusions. In response, we as researchers of LGBT parent-families have often had to carefully (and repeatedly) explain and defend our findings and research methodology. In addition, our critics have pushed us to improve the rigor of our research designs (for example, including larger numbers of participants in our studies, and seeking out more diverse participants for our studies), which is, ultimately a good thing: Better science and fewer flaws means that our findings are less vulnerable to hen-pecking.

Massachusetts Governor Sues to Force Vote on Same-Sex Marriage Amendment

Governor Mitt Romney, filed suit Friday to force the Massachusetts legislature to vote on a constitutional amendment banning same-sex marriage. On November 9th, the legislature voted to recess a constitutional convention before the matter was taken up. Massachusetts law requires two votes by the legislature before the measure appears on a ballot. Proponents assert that the vote for a recess was a deliberate attempt to avoid an up or down vote on the amendment by citizens. Read more about it here.

Technorati Tags: Nontraditional Family, Same-Sex Marriage

Uniform Domestic Partnership Act

According to the Wills, Trust and Estates Prof Blog, two law professors have written an article proposing a Uniform Domestic Partnership Act modeled after uniform business partnership acts. They contend that marriage as it stands today fails to fulfill the expectations of most families - traditional and nontraditional. Their proposal would allow parties to select from several forms of domestic partnerships and leave marriage under the control of religious institutions.

The abstract for their article states:

"For decades, Americans have argued about who may marry and what marriage actually means in legal, religious, and philosophical terms. For almost as long, two problems - the rising divorce rate and the poverty of some “divorced” children and their custodians - have fed concerns about the viability of marriage as an institution that promotes domestic stability and economic security. This Article explores the notion that domestic partnership based upon business partnership law would better serve more couples, their families, and society as a whole. It proposes a Uniform Domestic Partnership Act, loosely modeled after the UPA, as a substitute for marriage and recommends that marriage continue, without legal significance, under the exclusive control of religious institutions. By demonstrating that modern couples expect civil marriage to provide something different than couples did historically and by adapting business partnership law approaches to areas such as fiduciary duty, agency and transaction costs, and limited liability, this Article proposes a legal structure for domestic enterprises. Actually, it offers four new solutions: the Filial, the Enduring, the Caregiving, and the Provisional Domestic Partnerships."

Drobac, Jennifer Ann and Page, Antony, "A Uniform Domestic Partnership Act: Marrying Business Partnership and Family Law" . Georgia Law Review, 2007 Available at SSRN: http://ssrn.com/abstract=929269

Technorati Tags: Alternative Family, Civil Union, Domestic Partnership, Nontraditional Family

Shared Parenting Agreements

If your nontraditional family has or is planning to have a child, the best option to protect your rights and those of the child is a second parent adoption. Second parent adoption is a legal procedure that allows a second parent to legally adopt the child without terminating the rights of the first parent. Read more about second parent adoption here.

For some, second parent adoption is not possible because state law doesn't allow it or because another parent is involved. For example, say Chris has a child from a prior marriage to Michelle. Michelle is still legally recognized as a parent of the child. As long as Michelle has parental rights, a second parent adoption by Chris's partner is not possible. Similarly, second parent adoption is not available where a sperm donor or surrogate biological mother retains parental rights.

The next best option is to state the couple's intentions with regard to children in a shared parenting agreement. These agreements are not likely to be enforced by a court; instead courts assess what is in the best interest of the child. However, the agreement may help guide the court by establishing the relationship between the child and the partners. A shared parenting agreement should address:

• The parties' intent to mutually raise the children and share rights and responsibilities
• Day-to-day care of the child - how decisions are made and how expenses are shared
• Which parent will claim the child as a dependent for income tax purposes
• Whether one or both will name the child as beneficiary under life insurance policies
• Custody, visitation, support should the relationship end
• How disputes under the agreement are to be handled - mediation, arbitration etc.

The process of drafting a shared parenting agreement allows the partners to fully discuss their expectations and may help them deal with disputes when they arise.

Technorati Tags: Alternative Family, Domestic Partnership, Nontraditional Family

More on the New Jersey Ruling

New Jersey's recent court ruling was a big step, but according to Lambda Legal, it represents just a first step. They contend that "... a civil union is a separate, confusing legal idea that divides us from our friends and neighbors, rather than bringing us together as equals. We agree with Chief Justice Poritz, who wrote in her dissent, “Labels set people apart as surely as physical separation on a bus or in school facilities.”" (Source Lambda Legal email newsletter October 26, 2006)

Want to know more about the ruling and how it might affect you? Some common questions and answers are:

What does the decision mean?

The court ruled that same-sex couples and their families have a constitutional right to the same benefits as heterosexual families. It ordered New Jersey’s Legislature to pass legislation providing these benefits and protections to same-sex couples within 180 days.

When does the law go into effect?

The court’s decision is effective as of April 23, 2007. By that time, the state legislature must adopt legislation to provide equal benefits and protections to same-sex couples.

What about non-residents?

New Jersey does not have a residency requirement for marriage. The court ruled that it cannot be any more difficult to enter into a civil union than into a marriage. S,o out-of-state couples will be able go to New Jersey to marry or enter into a civil union, depending on how the state legislature proceeds. However, your marriage or civil union might not be recognized in your home state.

These questions and answers were adapted from the very helpful list on the Human Rights Campaign website.

If you are a New Jersey resident and want to find out what you can do, click here to contact your legislators.

Technorati Tags: Alternative Family, Civil Union, Non-traditional Family, Same-Sex Marriage

New Jersey Ruling on Same-Sex Couples

The New Jersey Supreme Court has just ruled that denying same-sex couples the right to marry is unconstitutional. The ruling directs the legislature to fix the inequality. The New Jersey legislature must act within 180 days.

From the decision:

Only rights that are deeply rooted in the traditions, history, and conscience of the people are deemed to be fundamental. Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1. To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to same sex couples, whether marriage or some other term, is a matter left to the democratic process. (emphasis added)

Read more about it and download the opinion at Lambda Legal.

Technorati Tags: Alternative Family, Civil Union, Non-traditional Family, Same-Sex Marriage

Second Parent Adoption

A second parent adoption allows the second partner to legally adopt the biological or adoptive child of the first partner. The first partner does not give up any parental rights. The result is that the child has two legal parents.

Second parent adoption is critical to protect the child's right to financial support in the event one parent dies or is incapacitated. With a legally recognized parental relationship, the child can inherit from a deceased parent, claim social security benefits, obtain worker's compensation benefits and obtain health insurance benefits from a parent's employee. Furthermore, the adoption clarifies the custody rights of the second parent; without it, the child may be placed in foster care or with unfamiliar relatives.

Second parent adoption also protects the child's right to financial support and a continuing relationship with the second parent if the parents' relationship ends. Without it, the child has no right to financial support and visitation/custody may be denied to the second parent.

Additionally in the event of an emergency in which one legal parent is unavailable, the other legal parent will be able to consent to medical treatment for the child and may visit the child in the hospital.

Check out the National Center for Lesbian Rights for more information.

Technorati Tags: Adoption, Domestic Partnership, Non-traditional Family, Alternative Family

Homeownership Issues

Marriage comes with certain legal and financial benefits not available to non-traditional famlies. For example, married couples can inherit from each other without a will and can make certain transfers of property tax-free. Non-traditional families need to put extra protections in place in order to get similar benefits or to protect themselves from laws that might result in unintended consequences.

Property issues are governed by state law and they vary widely. So check your state's laws. Taxes such as gift and estate taxes are governed by federal law. The interplay of state and federal laws complicates the issues.

Unmarried couples should carefully decide how to structure their homeownership. Different structures can produce varying tax and inheritance results. For example, a home owned as "joint tenants with right of survivorship" generally means that when one partner dies, the other inherits her interest immediately, without probate. However, in some cases, the estates of both partners may be taxed with the full value of the property. On the other hand, in a "tenancy-in-common" structure, each partner owns a divisible one-half share. It's up to each partner to dispose of their portion by will. If they don't, the next legal heir (a traditional family member) will inherit the property. Some unmarried couples transfer their property to a trust to avoid some of these issues. A trust allows one partner to leave property to the other without going through probate and can provide other benefits.

Another pitfall to watch for is putting your partner on the title of property you already own. The addition of your partner is considered a gift to that partner. If the gift is worth more than $12,000, you will have to file a gift tax return and the amount over $12,000 counts against your $1 million lifetime exemption.

For more information, click here.

Technorati Tags: Domestic Partnership, Estate Planning, Non-traditional Family

Domestic Partnership Agreements

What is it?

Also called "Living Together" agreements, they contain details regarding who owns property, how it will be divided, how finances are managed etc. They are similar to a prenuptial agreement. Agreeing to these issues in advance will help avoid trouble when you mix your money and property, and it will make clear your expectations regarding property ownership, child care, financial support and other important issues.

Why is it Important?

Domestic partnership agreements are critical to the non-traditional family because these families are not protected by the backdrop of laws that apply to traditional families. When a couple marries, they are automatically subject to a well-established set of laws governing issues such as property ownership, financial support and child care. These laws to not apply to non-traditional families. If you plan to (or already) share property, money or parenting, you should put your agreement in writing.

What Should it Contain?

The agreement can cover a variety of topics, but should contain provisions regarding:

• Full disclosure of assets
• Separate and jointly owned property
• Ownership of property acquired during the relationship and how it is to be divided if the relationship ends
• Child care, custody and visitation
• Sharing of income and expenses
• Change of financial circumstances and how that affects other financial agreements
• The death of either partner during the relationship
• Mediation and/or arbitration to resolve disputes

Technorati Tags: Domestic Partnership, Non-traditional Family

Life Planning for the Non-Traditional Family

Ozzie & Harriet, June & Ward move over - According to the latest census, only 24% of U.S. households consist of married couples with kids. In their place is an ever-widening definition of family, such as grandparents caring for grandchildren, adult children caring for aging parents, elderly couples who chose not to marry, same-sex partners (with or without children), divorced parents raising kids alone, step-parents with blended families, adoptive parents, etc.

Non-traditional families want the same peace of mind as other families when it comes to managing, protecting and passing on assets to future generations. However, non-traditional families can't rely on the backdrop of laws that apply to the traditional, nuclear family. For example, laws regarding government benefits for survivors, inheritance, property division and child custody typically don't apply to non-traditional families. That's why its important for the non-traditional family to consider life and estate planning alternatives such as:

• Domestic Partnership or "Living Together" Agreement - Contract between people living together that includes details regarding who owns property, how it will be divided, how finances are managed etc. It is similar to a prenuptial agreement.
• Parenting Agreement - Allows a biological parent to designate a guardian for her child such as a co-parent, friend or family member. The guardian can also be given the power to make medical decisions for the child. This type of agreement might also include clauses describing support for the child, custody and visitation.
• Power of Attorney - One person (the "principal") designates another (the "agent) to act on his behalf. The agent can be given broad power to make decisions regarding the principal's financial and business affairs. The principal can also sign a power of attorney for more limited purposes such as health care decisions or selling a home.
• Living Will or Advance Directive - Directs your doctor to use or refrain from using artificial means of life support in the event you are in a terminal and irreversible condition.
• Will - A will allows you to designate who gets your property when you die. In the absence of a will, state law makes this determination. In the case of a non-traditional family, the result may not be what you intend. For example, many states provide that your property goes to your spouse upon your death. If you don't have a legally recognized spouse, the property may go to your parents or siblings and leave your partner out.
• Funeral Arrangements - Allows you to detail exactly how you would like your funeral to be carried out. Without this type of document, the law will look to blood relatives to make these decisions.
• Nomination of a Guardian or Conservator - You can designate who is to make decisions for you in the event you are incapacitated.

Technorati Tags: Alternative Family, Domestic Partnership, Estate Planning, Nontraditional Family