Lesbian couple's marriage changes nothing about their ownership of previoiusly purchased property...and a thought about marital name changes

An otherwise unremarkable ruling from a New York trial court last month highlights a circumstance bound to impact many same-sex couples in the future. Jane Taylor and Diane Taylor (see my comment below about their names)bought a home as tenants in common in July 2008. A tenancy in common means each person owns her own share, the shares need not be equal, either owner can sell her share through a court action known as partition, and if one dies the other does not inherit the property.

They married in Connecticut a few months later, and before that they wrote a "pre-nup" agreeing that their separately owned property from before the marriage would remain separate and the home they bought would, if sold, result in each person getting what she put into the home with the profit divided equally.

When they split up last year, Jane filed a partition action. Diane tried to stop the action, claiming that division of the property could only take place as part of a divorce. She lost because the property was purchased before the marriage and therefore not a marital asset.

This last point is the one that matters. This couple jointly owned the home before their marriage. But what this case illustrates is that if one person buys a home and then later marries the home is not a marital asset. No matter how long the couple lives in the home, its value will not be divided upon divorce according to "equitable distribution" principles. Of course if the non-owning spouse put money into improving the value of the home there may be a property claim, and if there is a contract there may be a breach of contract claim, but those are very different from equitably dividing assets at divorce.

Given that same-sex couples are marrying now, often after having been together for many years, this could work a real hardship on the person whose name is not on the deed to the house. The rule applies equally to heterosexual couples, but since marriage has only recently become available to same-sex couples, many of those couples will have lived together for a long time before marrying.

This illustrates the arbitrariness of the rule that rigidly divides property into "marital" and "nonmarital" and allows division of only the former, yet that is the rule in the vast majority of states. Washington state is an exception. The courts there treat couples who live together without marrying the same as married couples when it comes to the accumulation and division of community property. I like that rule.

But there is another way to achieve a similar result for a couple who does, ultimately, marry. A few states look at all the property owned separately or together by the two spouses and allow divison of all of it according to equitable principles. This is called the "hotchpot" approach. The current version of the Uniform Marriage and Divorce Act contains this approach, but few states have adopted it. Most maintain a rigid distinction and do not allow a judge to allocate the pre-marital property of one spouse to the other.

We are seeing only the tip of the iceberg of divorces of same-sex couples, but I predict this issue will loom large. Even if some judges will be persuaded that they can divide the family home even if it is titled in the name of only one spouse and was purchased before they married, that will not help the couples who do not marry. For them, the rule in Washington state is the only fair answer, but I don't see the law moving in that direction.

Meanwhile, about their names. Each spouse has a "formerly known as" and a different name listed in the caption of the case. So it looks like they both changed their names to a common name at some point. I hope someone is studying whether there are distinct characteristics of same-sex couples who do this. The tradition of a wife assuming the name of her husband once served as a visible expression of her loss of identity in marriage. A couple who takes an entirely new name obviously is not making this statement, but is still saying something about their desire to be seen as a unit.

This issue surfaced in South Dakota in the last couple of months, with lesbians married in Iowa unable to use their marriage certificates as a basis for a name change on their drivers' licenses because the state does not recognize same-sex marriage. The ACLU represented a couple, Jessica Dybing and Andrea Jorgenson, denied the ability to get new licenses in their hyphenated name; in the other instance, one woman, Amy Muston, wanted to adopt the last name of her spouse, Ashley Stabe. The women were granted the name changes by a judge last month, in a routine name-change proceeding. Generally, a judge will grant any name change petition as long as the reason for the change is not fraudulent. Of course this still does not answer my question about why two women feel they need the same last name.

Important elder law publication...with a caveat

I was so excited to see the National Center for Lesbian Rights' new publication, Planning with Purpose: Legal Basics for LGBT Elders, available on line here. Basically, I love any publication that explains the law to people in a clear and useful way.

So why the caveat? Well, the section on relationship recognition begins with a section entitled "Federal Law Discriminates Against Same-Sex Couples." Of course this is about DOMA and the federal government's unwillingness to treat as married those same-sex couples who are legally married in their states. This is the beginning of an incomplete picture of the significance of marriage under federal law, especially involving elders. Bottom line: Sometimes it is economically BETTER to be an unmarried couple.

The publication importantly notes the rules that protect a spouse's right to stay in a home if one spouse goes into a nursing home on Medicaid. There is also a set-aside of a certain amount of assets. But the publication completely ignores the fact that if one partner owns most of the assets and it is the other partner who needs nursing home care, then being UNMARRIED is the best economic protection. That's because an unmarried person's property is his/her own; none of it needs to go towards the care of the person in the nursing home. If the couple were married, all of the assets of both partners, with limited exceptions, would have to go towards the care of the partner in the nursing home. Furthermore, if the couple owns a house together, elder law experts say that the unmarried co-owner will be allowed to remain in the home.

Now when an unmarried heterosexual couple sees an elder law specialist to learn the consequences of getting married, the lawyer will relate these rules. The couple may decide not to marry because of the different treatment of married and unmarried couples. The NCLR publication just does not present the information a same-sex couple would need to make a similar decision if DOMA repeal meant that a same-sex couple's marriage WOULD be recognized under federal law.

The publication also discusses the disadvantages same-sex couples face under social security law, but it again fails to put the status of unmarried couples in the context of who gets what social security benefits. This is a criticm I leveled at GLAD's lawsuit challenging DOMA. Read about that here.

So here is my question. Why present our inability to marry and obtain federal recognition of those marriages as always a bad thing when it is not? This is a huge oversight in a publication about elders. After all, heterosexual elders have been choosing to live together without marrying since before it was even socially acceptable to do so. (You know...they were companions.)

To me this is the triumph of a pro-marriage ideology over the goal that any LGBT publication should have --- accurate and complete information.

Marriage won't get parental rights for Cynthia Nixon's partner

Thanks to Dana Rudolph at Mombian to pointing out to me that Cynthia Nixon thinks her upcoming marriage to Christine Marinoni will give Christine a legal right to a relationship with the children Cynthia had with Danny Mozes. After Ellen reported that at a rally last Sunday in New York, Nixon announced her engagement to Marinoni and called for the right to marry in New York, noting that Marinoni is a stay-at-home mom but currently has no legal right to the children if Nixon dies.

It sounds to me like Nixon is under the impression that Marinoni will have such legal rights after they marry, but this isn't true. Marinoni will become a stepparent, but in New York -- and many places (maybe most) -- stepparents don't have rights to custody or visitation. If Nixon dies, the children would go to their father, and he would decide how much time, if any, Marinoni could spend with the children.

Advocates in NY have been trying for years to overturn a terrible 1991 court decision defining "parent" so narrowly that a biological mom could totally block access between her former partner and her biological child, even though the former partner had totally functioned as a parent to the child with the bio mom's consent. That opinion was later used to justify denying a stepfather access to his stepchildren. (Thanks to New York lawyer Michele Kahn for confirming this for me.) But even if that case is overruled, the principle involved concerns two co-parents, not a child who has two parents and then gains another parental figure -- stepparent or otherwise.

If Nixon's children did not have another parent, Marinoni could adopt them, and she could do that regardless of whether she and Nixon married. She could also adopt them if Mozes agreed to terminate his parental rights, but that's not the situation here. Again, Nixon and Marinoni would not have to be married.

Marriage and legal parenthood are two distinct things. If Cynthia Nixon is confused about this, I bet lots of folks are.

How about the whole story on taxes and same-sex married couples?

Gary Gates does amazing work. He is singlehandedly responsible for the wealth of knowledge we have about same-sex couples from census data. I turn to him for data for my own work. But his co-authored Huffington Post piece today doesn’t tell the whole story about same-sex couples and taxes.

What he writes about is the unfairness of treating married same-sex couples as unmarried for purposes of federal law. Unlike GLAD’s lawsuit challenging DOMA, he steers clear of examples of same-sex couples who pay more federal income tax because they are treated as single individuals. I’m figuring that’s because he knows that for close-to- equal-earning same-sex couples, they do better being considered unmarried under federal law. The married couples who pay less in federal income tax are those who are the single-earner model, mirroring the husband-at-work and wife-at-home marriage that lawmakers had in mind when they enacted our tax code. I find it unjust that the tax system rewards such families at the expense of equal earners, whether those couples are gay or straight.

Gary Gates does mention Social Security. As I explained in an earlier post about the GLAD lawsuit, our system of Social Security survivors benefits also favors the traditional, gendered model of a single, or at least one primary, income earner. Dual income married couples pay more into the system and get less out over the course of both their lifetimes than the traditional, gendered model. Race-based critiques of Social Security point out that since Black married couples are more likely to both work and to have more equal incomes, the current system disadvantages them.

What should the gay rights movement do? Rather than complain about our lack of access to a set of laws that benefits only some members of our community, how about we work with other groups who want to reform family taxation and Social Security rules for everyone? I wrote about this last year. I'd love to have something different to report for tax day 2010.

Why Lawyers Recommend Second-Parent Adoptions (even if you're married)

When I posted on Thomas Beatie (aka the pregnant man), I noted that his wife Nancy needs to adopt their child to be certain that her relationship with the child will be protected and recognized everywhere. (My crosspost on Bilerico generated many, often indignant, comments). All the LGBT legal groups advise same-sex couples to do second-parent adoptions, even when they are married, or in civil unions or domestic partnerships that give both people parental rights over a child born to either of them.

A recent decision from a federal court judge in Louisiana explains why. In that case, litigated by Lambda Legal, the state of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy.

Rejecting the state's argument, the District Court Judge Jay Zainey explained the meaning of the federal constitution's "full faith and credit" clause. That clause requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. The judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." (my emphasis). But, Judge Zainey continued,

"There is no 'roving public policy exception' to the full faith and credit obligation of states to recognize judgments. Instead, the Supreme Court has held in a number of cases that full faith and credit must be given to the judgment of another state even if...the judgment contravenes the public policy of the forum state." (my emphasis)

So if someone is the parent of a child by virtue of a state statute that gives that person a status with respect to the person who gave birth to the child (spouse, domestic partner, civil union partner), another state may not recognize that parent-child relationship. But an adoption is a court proceeding that results in a judgment granting the adoption, and that must be given full faith and credit, even in states hostile to gay families.

Readers of this blog and my book know that I abhor the argument that same-sex couples should be allowed to marry for the sake of their children. Marriage equality advocates make claims about the benefits to children of having married parents. Since no child is supposed to face discrimination as a result of having unmarried parents (whether those parents are same-sex or different-sex), I always argue that the solution to any disadvantage is to clarify that marriage is not necessary for children of either straight or gay couples.

But the claimed benefits of marriage for children are also misleading. If a married same-sex couple thinks they are both parents of the child born to one of them, they may be in for a shock if they move to or travel in a state that doesn't recognize their marriage (more than 40!). It's a second-parent adoption that protects the parent-child relationship, and for that the couple doesn't need to be married!

We're not getting allies complaining this way about the tax laws

If news reports from a panel at last week's Gay and Lesbian Leadership Conference are correct, some of the leaders of our national organizations need some educating. According to an article in the Washington Blade, "[Human Rights Campaign President Joe] Solmonese and others on the panel agreed that amidst the national recession, a new focus should be placed on the unique economic issues that gay Americans face, such as tax inequities." (emphasis mine)

Tax inequities as economic issues unique to gay Americans? Which would those be? Under our current income tax structure, one family form gets enormous benefits: a married heterosexual couple in which one partner earns all, or the great majority of, the family's income. So if our leaders think the income tax laws are unfair to gay couples, they can only be referring to gay couples in which one partner earns all, or most, of the income. I don't know about anyone else, but I'm not fighting a revolution over that issue. And it's not going to win us straight allies either.

Now joining with all the other disadvantaged family forms, and that includes heterosexual married couples who are equal income earners, that's something I can get behind. Turns out the folks who study our income tax system from a critical race perspective, like Emory Law School prof Dorothy Brown, point out that our tax laws disadvantage African-American married couples. Why? Because -- no surprise -- they are more likely to be close-to-equal income earners. So much for tax inequities unique to gay Americans. For more on what's wrong with how our income tax structure treats families, see the excellent website of the Alternatives to Marriage Project.

How about other taxes? Inheritance taxes and property transfer taxes are two examples of laws that favor married couples. But that still doesn't make the inequities unique to gay folks. Two sisters who pool their economic resources for a lifetime? Two single parents -- gay, straight, one of each -- who form an economically and emotionally interdependent unit to raise their children? A loving daughter who devotes 20 years of her life to living with and caring for an ill and aging mother? A communal household of radical faeries?

The list goes on, and the bottom line is that married couples get the tax breaks. If same sex couples could marry-and we got rid of DOMA-, then married same-sex couples would get those breaks too. As far as I'm concerned, that would bring us no closer to tax equity than we are now. For that, we need to make marriage matter less.

And if we're looking for economic issues that will resonate beyond our narrow movement, somebody in our leadership needs to start with just economic policies for all families and relationships, not the benefits wealthy married couples get from our tax laws.

WHAT'S IN THE NAME?

Another book about marriage came to my attention this weekend: "The Marriage Benefit: The Surprising Rewards of Staying Together, by psychologist Mark O'Connell. The title sounds close to that of "The Case for Marriage," Linda Waite and Maggie Gallagaher's book that I blast in my book for its "marriage promotion" propaganda and that Bella DePaulo skewers in her book, "Singled Out."

So imagine my surprise to hear what Dr. O'Connell said on Tom Ashbrook's On Point on public radio. A caller said she would not marry her male partner because same-sex couples cannot marry. She also said she would not marry because she is bisexual and if her partner had been a woman she would be unable to marry her. Here's how the author responded: "Everything I wrote in the book really applies in a broader sense to the matter of intimate commitment....I wouldn't sit here and argue that one has to be formally and conventionally married in order to have the kind of benefits that come from intimacy....What we are talking about it here is what is it about sustained intimate commitment that can bring you things that are actually quite unique?"

So why call the book, "The Marriage Benefit?" Why not call it "The Intimate Commitment Benefit?" I think I know the answer. The name marriage sells. It resonates in a culture that has been inundated by the claims of the "marriage movement" and government-sponsored "marriage promotion" that the decline of marriage causes our social problems. It would actually be a radical claim in our culture that intimate commitment brings the same benefits that marriage brings. The author even said he believes in divorce! You wouldn't know it from the book title. I'm sorry this author -- and his publisher - chose not to make the more radical and nuanced claim in the title of the book itself.

SO IS MARRIAGE REALLY A CHOICE IN MASSACHUSETTS?

It's a given that the marriage equality movement is about obtaining the choice to marry. Well we've got that choice in Massachusetts, and then last week out comes a case that shows, again, that it's not really a choice at all. Not if we want to protect economic security and emotional peace of mind.

The Massachusetts Supreme Judicial Court decision requiring the state to allow same-sex couples to marry (usually referred to as the Goodridge decision) was an ode to the importance of marriage. So it's no surprise that the judges are more than happy to make the line between the married and the unmarried as bright as can be. Last week, they decided a case in which Cynthia Kalish sought to recover damages for loss of consortium as a result of a medical malpractice claim concerning her partner of over 15 years. Loss of consortium damages are what a can spouse can get to make up for the loss of a spouse's companionship due to another's negligence.

Cynthia and her partner Michele married as soon as they were legally able to do so. But Michele's medical malpractice claim stemmed from before their marriage. So the court had to decide whether, as an unmarried couple -- even one that would have married had it been legally permissible -- Cynthia was eligible for loss of consortium damages. The court ruled she wasn't.

It's not like the loss of consortium action was frozen in time from its creation centuries ago. Used to be only a husband could recover these damages. The Massachusetts court had already extended this cause of action to wives, minor and disabled adult children, and a fetus, later born alive. But the court had also denied recovery to unmarried heterosexual partners, citing the state's "deep interest" in uphold the integrity of marriage.

So it's no surprise that in this case the court reminded us that the many benefits attached only to marriage were part of the reason it had found the ban on same-sex marriage unconstitutional. The court explicitly refused to "erase the bright line between civil marriage and other forms of relationship."

Now I can't say the court would have decided otherwise had it ruled the other way in Goodridge. Probably the outcome would have been the same. But it's the wrong decision. It's not that hard to come up with a test for courts to apply that recognizes when two people living together have relied on each other's love and support to the extent that loss of consortium damages are appropriate. There's really no reason to fear that mere roommates would qualify.

Like so many other legal consequences of marriage, if only the married can get them, what kind of a choice do we really get when we get the right to marry?

YOU CAN MARRY -- BUT SHOULD YOU?

Readers of this blog --and my book -- know that I don't think marriage should be the dividing line in law for relationships that count and those that don't. But now that same-sex couples from all over the country can marry in California as of June 17, many are thinking...should we or shouldn't we? There ARE legal consequences from marrying, and some should make couples think twice. (Caveat: Talk to a lawyer in your state about the consequences of marrying. This blog is not legal advice specifically tailored to you.)

Right now, federal law does not recognize same-sex marriages, but that could change. Barack Obama supports law reform that would treat a couple married under state law as married for all federal law purposes as well. So here is sobering example of how being married under federal law might disadvantage you.

If you are an aging couple and one of you is facing nursing home care for which you need Medicaid payment, you may not want to marry if you own some or all of your assets now in separate names. The assets of both spouses are considered available to pay for either spouse's nursing home care. It doesn't matter whose name is on the asset and it doesn't matter if the couple has a prenuptial agreement. The "noninstitutionalized" spouse will only be able to keep a certain amount of money (called a "resource allowance"); everything else must be used to pay for the care or must be "spent down" before the other spouse is eligible for Medicaid.

The "noninstitutionalized" spouse will be able to remain in the couple's home, but an unmarried partner can also remain in a jointly-owned home, although for an unmarried couple the government may collect part of the value of the home after it is sold. (But the partner will never be forced to sell the home and move out.)

One instance where the couple would be better off married is if the partner facing nursing home care owns most of the assets and the partner who won't be in the nursing home has little assets in his own name. As a married couple, the spousal resource allowance will be available to the "noninstitutionalized" partner; as an unmarried couple, the person entering the nursing home will have to spend down everything, leaving nothing for his partner.

Confusing? You bet! If you think this circumstance applies to you, consult an expert in "elder law" in your state. Some rules do vary from state to state, so what I've written here isn't legal advice you should rely upon.