LEGAL ISSUES AFFECTING THE LGBT COMMUNITY WORKSHOP SERIES. WORKSHOP #1: LGBT PARTNER RELATIONSHIPS January 29, 2013

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1 LEGAL ISSUES AFFECTING THE LGBT COMMUNITY WORKSHOP SERIES WORKSHOP #1: LGBT PARTNER RELATIONSHIPS January 29, 2013 A. Legal Recognition of Lesbian and Gay Relationships Ohio does not recognize same-sex relationships. The Ohio Constitution and Ohio statutes restrict marriage to one man and one woman. Some Ohio cities/counties (e.g. Cleveland Hts., Cleveland, Oberlin, Cuyahoga County) allow lesbian and gay couples to register as domestic partners. These registrations have no legal effect on the relationship. They may be sufficient to qualify people for domestic partner benefits from a private employer. Lesbian and gay couples that marry in recognition states will not have their marriages recognized in Ohio. Ohio courts have no jurisdiction to grant divorces or dissolutions to married lesbian and gay couples. There are nine states and the District of Columbia that recognize marriage equality: Massachusetts, Iowa, Vermont, New Hampshire, Maine, Connecticut, Maryland, New York, Washington and the District of Columbia (current as of January 2013) California, Delaware, Illinois, Nevada, New Jersey, Oregon and Rhode Island recognize Civil Unions or Domestic Partnerships for lesbian and gay couples. The District of Columbia also recognizes Domestic Partnerships in addition to legal marriage for lesbian and gay couples. These states will recognize same-sex marriages as either Civil Unions or Domestic Partnerships. Most of the marriage equality states recognize same-sex marriages entered in other recognition states. Hawaii, Colorado and Wisconsin provide limited legal rights for lesbian and gay couples. Colorado s legislature is considering a civil union proposal. The nonrecognition states are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming. 1

2 B. Divorce Couples that marry in a recognition state but live in a non-recognition state face an uncertain future when the relationship ends. Deborah Wald, a partner in the San Francisco law firm, Wald and Thorndal, P.C., calls this wed-locked. All couples must been residency requirements when seeking a divorce. These requirements are not directed against same-sex couples. Lesbian and gay couples that married in California or the District of Columbia, and live in a nonrecognition state, are able to obtain a divorce in those jurisdictions without establishing residency. Because Ohio does not recognize same-sex marriage, lesbian and gay couples that are married and live in Ohio cannot file for a divorce or dissolution. This creates serious problems for these couples because they cannot terminate a marriage that is legally recognized in some jurisdictions. C. Defense of Marriage Act (DOMA) DOMA is a federal law that prohibits recognition of lesbian and gay marriages. The United States Supreme Court will issue a decision in June on whether DOMA is constitutional. If DOMA is repealed it does NOT mean that Ohio must recognize same-sex marriages. What happens to married same-sex couples living in non-recognition states is unknown. It is also unknown whether the Supreme Court will address the issue. C. Children Second and joint parent adoptions allow a non-biological parent to adopt her partner s children without the biological parent giving up her rights. For lesbian and gay couples this is crucial. Second Parent Adoption: 13 states and the District of Columbia, allow second parent adoption: California, Florida, Oregon, Montana, Colorado, Illinois, Indiana, Pennsylvania, New York, Vermont, Maine, Massachusetts, Connecticut, New Jersey and the District of Columbia. Five states restrict second parent adoption: Utah, Nebraska, Wisconsin, Ohio and Kentucky. Joint adoption 18 states and the District of Columbia allow joint adoption: California, Washington, Oregon, Nevada, Iowa, Illinois, Indiana, New York, Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland and the District of Columbia. Ohio s adoption law does not specifically permit second parent or joint adoptions. The Ohio Supreme Court left open the question of whether it will recognize or allow second parent adoptions. (In re Bonfield) Adoption is a statutory creation and it is strictly construed. That means if the statute does not allow something, a court cannot interpret the law to say it does. Children born to a married same-sex couple, during the marriage are not treated the same as those born to a heterosexual married couple. 2

3 Couples that decide to start a family need to execute a Joint Custody Agreement. When the child is born, that agreement should be filed in court. You cannot have a Joint Parenting Agreement because Ohio law does not recognize the non-biological person as a parent. Under Ohio law, the non-biological parent has NO LEGAL RIGHTS TO THE CHILD IN OHIO, unless the biological parent agrees to grant rights. Further, that person is not a parent as defined by the Ohio statute. A written agreement is the best way to protect the rights of the non-biological parent. If there is no written agreement, the person without a biological connection the child cannot enforce custody or visitation rights. (In re Mullen) Ohio does recognize surrogacy contracts. This is one way for gay male couples to become parents. At least one of them will be designated the child s parents. Surrogacy is not an easy or inexpensive process. Having legal representation is essential. Artificial reproductive technology (ART) is a common means used by lesbian couples when starting a family. There are many issues to consider with ART. Many couples want to use a known donor. This is always a mistake. Doing so creates a second biological parent and precludes recognition of the other partner even with a Joint Custody Agreement. The donor will have the same parental rights as the biological parent. This is true even if he signed a contract waiving his rights. Remember, neither parent can waive child support because it is owed to the child, not the custodial parent. (In re Mullen) In some states, the donor s parental rights can be terminated through an adoption. Since adoption may not be possible in Ohio, this may not be an option. Same-sex couples that adopt children in other states will have those adoptions recognized by Ohio under the federal constitution s Full Faith and Credit Clause. HOWEVER, the Ohio Department of Health has taken the position that these adoptions violate Ohio s public policy and will not be recognized. A federal lawsuit is planned. VIABLE ALTERNATIVES ON THE ADOPTION FRONT: It is possible to arrange for the child to be born in another state that permits second parent or joint adoptions and finalize the matter there. New Jersey is one such state but there are additional steps that must be taken. The couple must be married or in a civil union before the birth. This allows the couple to have both names placed on the birth certificate when the child is born. The adoption process is started before the birth and completed about 90 days after. The parents will need to return to New Jersey for the hearing. The donor s parental rights will also be terminated. Neither prospective parent needs to be a New Jersey resident. Florida is another possibility. Residency is not required and the child need not be born in Florida. The adoption process can be started, a home study conducted in Ohio and the adoption finalized in Florida. The irony is that Florida has gone from being the worst state for lesbian and gay couples that want to adopt to one of the best almost overnight. 3

4 Regardless of which path you decide to follow, you need a lawyer. In fact, both parties need to be represented by a lawyer. Only an experienced lawyer can ensure compliance with the law. There may be a need for lawyers in Ohio and another state. This will be expensive, but the legal protection you gain from it will be worth the time and expense. D. Artificial reproductive technology (ART) and surrogacy are alternatives often used by lesbian and gay couples to start a family. This is a complex area of law and not one a couple should attempt to navigate without legal assistance. Lesbian couples often want to use a known sperm donor. This is NEVER a good idea. By doing so, the sperm donor is the biological father of the child. Neither the couple nor the donor can terminate the donor s parental responsibilities. The biological mother can pursue child support from the donor at any time. Child support is owed to the child, not the mother. Further, the donor can seek to enforce his parental rights at any time--even if he agrees not to do so in a written contract. In addition, the biological mother s lesbian partner will not be considered a legal parent. Should the couple end their relationship, it is likely the former partner will be denied any rights to visitation or custody of the child. It is also advisable for the couple to use a clinic or medical doctor to perform the insemination. The days of do-it-yourself insemination are over. No more turkey-basters. Failure to use a clinic or medical doctor may interfere with any underlying agreements. Gay male couples may use surrogacy as the means to start a family. As with ART, it is important for the couple to use a lawyer to draft the surrogacy agreement. Ohio recognizes surrogacy contracts. However, that is not true of all states. Therefore, it is important to consider the law in the state where the surrogate resides. Using a known egg donor, if the surrogate will be for gestational purposes only, carries the same concerns as a known sperm donor. Also, the surrogate may decide to keep the baby. Given the precarious nature of these contracts, it is best to consult with a lawyer experienced in surrogacy matters to represent the couple. E. Parental Rights, Responsibilities and Obligations A child s biological or adoptive parents have superior rights to all others. A biological or adoptive parent may waive those superior rights, in writing, if they want. If one member of a couple is the child s biological or adoptive parent, the other partner/spouse may be denied any legal connection to the child. If the legally recognized parent refuses to share custody or decides to deny visitation, a court may support that decision. A court may also support a decision by the legally recognized parent to share custody or visitation. These decisions should not be based solely on a but we love each other and she/he would never do anything to hurt me basis. Where legal rights are concerned, it is best to put everything in 4

5 writing and then have that agreement adopted by a court. Only then will both parties be sure of their legal standing. F. Taxes As it stands, married lesbian and gay couples cannot file joint tax returns. Each person is considered single for tax purposes. This is true on the federal and state level. DOMA prevents the IRS from recognizing same-sex marriages. One of the cases being considered by the U.S. Supreme Court deals with DOMA and the federal tax issue (Windsor v. United State). However, since that case is pending before the court, couples may file a protective claim with the Internal Revenue Service as a married couple. Amended protective claims may be filed for the past three years if you were married during that time. Same-sex couples use the pending Supreme Court case as the reason for filing. Consult your tax preparer. If the Supreme Court declares DOMA unconstitutional, married same-sex couples will continue to have tax issues. While they may be permitted to file federal joint tax returns they will need to file as single/unmarried in Ohio. This requires each couple to prepare multiple tax returns to comply with state and federal tax laws. The couple must prepare a joint state return in order to properly prepare the joint federal tax return. They will also need to file a state tax return as a single/unmarried person. G. Partnership Agreements Domestic Partnership Agreements are contracts entered into by the couple with each other. They are treated as contracts and enforceable under Ohio contract law. The DPAs can be as simple or complex as you want. The couple can agree to enforce the agreement in court or through mediation or arbitration. You will need to provide a list of all assets, including those owned jointly and individually. Doing so establishes who owns what when the agreement is signed. Then, should the relationship end, the division of assets is easier. Of course, when things change, the DPA must be updated. This process can be provided for in the DPA. Some lesbian and gay couples that are contemplating marriage may decide to sign a pre-nuptial agreement. This is the same thing heterosexual couples sign but a court would view it as a contract similar to a DPA. Each party will need her own lawyer. However, designating the document as a pre-nuptial agreement will lend credence to the solemnity of the marriage--even if the state does not recognize it. 5

6 H. Estate Planning Estate planning is more than anticipating death. The process includes life planning and plotting out a protocol for use during your life. Having an estate plan establishes a pattern of behavior that can be used to support your wishes should anyone contest the post-death documents. Estate planning involves more than writing a Will or drafting a trust. A properly drawn estate plan will have a great impact on your life as well as after death. Dying without a Will means your estate will go to your relatives and not your partner. Even if you have a trust, you also need a Will. There are online companies that allow you to prepare a Will for $39. But, remember, none of those programs are set up to consider same-sex couples and their children. You are better served by contacting a lawyer who is experienced in handling LGBT legal issues. After all, you won t know if it s wrong until after you are dead. Or, worse, you are legally incompetent and can take no further action. And, then it is too late. The basic estate planning documents are: Will Trust (this is optional and depends on your specific situation) Living Will/Health Care Power of Attorney (Advance Directives) HIPAA Authorization Designation of Agent Designation of Agent to Make Funeral Arrangements General Durable Power of Attorney (with Guardian appointment provision if there are children) Designation of guardian for a minor child Permission for treatment of minor by non-parent Powers of Attorney are an important and very powerful part of any estate plan. A POA is valid only while you are alive. When you die, the POA ceases to exist. The person you named as your agent has no more authority to act on your behalf. Once the principal (that s you) dies, everything you owned is part of your estate. And, it will be processed according to the terms of your Will, trust or through the Ohio Descent and Distribution Statute. I. Property/Insurance/Misc Couples will buy things together. This includes real estate and large ticket items. It is important to decide who owns what. Keep the receipts. If the couple lives in a house owned by only one party, the other person should seriously consider renter s insurance. Even though you are part of a couple, the homeowner s insurance policy will not cover the non-owner s personal property. Do not just add the non-owner s name to the property s title. If there is a mortgage doing so can trigger the due on sale clause and the bank can demand immediate payment in full. You may 6

7 also trigger a gift tax situation. If the value exceeds $14,000, the excess amount may be considered a taxable gift and will be charged against the lifetime exemption. Under the newly enacted American Taxpayer Relief Act, the lifetime exemption for estate, gift and generation skipping transfers is fixed at $5 million, indexed for inflation (for 2013 that is $5,250,000). Most people need not concern themselves with this issue but the IRS may require that you file a gift tax return for gifts exceeding the annual exclusion amount. No tax would be owed, but the return may be required. Discuss it with your tax advisor. 7