I had the pleasure of being interviewed by David Brooks of the Nashua Telegraph for the article Same-sex divorces are a tiny but growing part of New Hampshire. As I observed, the reasons in a gay or lesbian divorce, and the emotions that come with it, are no different than any opposite-sex divorce. The differences come from the legal issues created by DOMA and other states who fail to recognize same-sex marriage. 

I learned something new from David, who was the first person to obtain same-sex divorce statistics from the State of New Hampshire. By the numbers:

Marriages                          Divorces

Female couples                                     1,628                                  61

Male couples                                           623                                     23 

Opposite-sex couples                            26,718                              15,222

The article also includes an interesting side note about the male/female ratios of marriages and divorces in New Hampshire same-sex couples. 

As of last month , New Hampshire has seen 1,628 female couples get married, which is 2½ times as many as the 623 male couples who have gotten married.

Over that same period, 61 female couples have gotten divorced, separated or had their marriage annulled – also 2½ times the figure for males, 23.

A part of our discussion that did not make it into the article was David’s question about whether my practice was devoted solely to these gay and lesbian divorce and parenting matters. While it is an interesting area of the law that I enjoy practicing in, my hope is that DOMA will soon be overturned and there won’t be any difference in the near future. Although I currently handle a large number of same-sex cases, it would be silly to exclusively devote to a law practice to an area of the law that will eventually no longer exist when marriage equality is achieved. 

 

Second parent adoption, also referred to as co-parent adoption or stepparent adoption, is the process where two parents, one who is a legal parent and one who is a legal stranger, create a permanent and legal relationship between the child and both parents.  The American Academy of Pediatrics, which supports same-sex second parent adoption, and explains these reasons for insuring both parents have legal rights:

Children deserve to know that their relationships with both of their parents are stable and legally recognized. This applies to all children, whether their parents are of the same or opposite sex.

 

When two adults participate in parenting a child, they and the child deserve the serenity that comes with legal recognition.

 

Denying legal parent status through adoption to co-parents or second parents prevents these children from enjoying the psychologic and legal security that comes from having two willing, capable, and loving parents.

New Hampshire has allowed second parent adoption for same-sex couples who are married since 2007, where previously only opposite sex spouses or single persons could adopt. This change came about with the recognition in New Hampshire of civil unions in January 2008, and eventually same-sex marriage in January 2010. It is important to remember that in New Hampshire the parents must be married. Some hospitals in New Hampshire will list a married same-sex couple as co-parents on the birth certificate of their child.

 

However, even with both parents listed on the birth certificate, it is still important to seek an adoption by the non-bio parent. Marriage entitles a non-biological parent to a presumption of parenthood, but that presumption is rebuttable. In other words, parenthood could be contested, and without solidifying parental rights and responsibilities with an adoption, the non-biological parent is vulnerable. Second, most other states do not recognize same-sex marriage, and legal parenthood gained by marriage for a same-sex partner may not be acknowledged in a different state. Adoption creates a binding court decree that is recognized by all states, whether passing through or moving to.

 

The second parent adoption will protect the child’s right to inheritance, health insurance, social security benefits and child support. The adoptive parent will have enforceable rights of custody and visitation, and parental rights and responsibilities in the event the biological parent passes away, regardless of the jurisdiction the family resides in. Additionally, when an emergency medical decision needs to be made for the child, the adoptive parent will have the ability to make the decision.

 

Other Resources:

 

In November, I authored an article on same-sex marriages in the New Hampshire Bar News geared towards helping practioners understand unique issues in same-sex divorces. I reprint here the full article:

Practicing family law in one of the six states that recognizes same-sex marriage requires an understanding of the unique challenges that same-sex couples face in a divorce. Usually, a divorce provides a mechanism to dissolve the legal relationship, divide property and establish parental rights and responsibilities. Although same-sex couples can dissolve their marriage in New Hampshire, reaching a fair and reasonable property division or establishing parental rights and responsibilities is much more difficult.

Marriage & Divorce

New Hampshire practitioners have limited precedent to guide them on several thorny issues that are distinctive to same-sex couples. Ironically, one of the few cases involving same-sex relationships, which is still good law, is now inconsistent with the state’s recognition of same-sex marriage. In the Matter of Blanchflower held that adultery does not include homosexual relationships. The court based its decision on the definition in New Hampshire of adultery, which excludes all non-coital sex acts, no matter the gender of the persons engaging in the act. Thus, although other fault grounds may be pursued, adultery is off the table for same-sex divorcing couples. The Blanchflower Court noted that it was not the function of the judiciary to extend past legislation to provide for present needs.

A common dispute in same-sex divorce is the calculation of the length of the marriage. In cases where the parties’ cohabitated long term prior to the marriage, one party may attempt to tack on the cohabitation to increase the length of the marriage and impact alimony and property division. This argument stems from the claim that had the parties been able to marry, they would have. Without New Hampshire precedent, the court may look to Massachusetts for guidance, where the Massachusetts Supreme Judicial Court has held that marriage benefits apply prospectively to the legalization of same-sex marriage. In addition to the cohabitation argument, the question also remains whether domestic partnerships, like those in California or New Jersey, might be similar enough to a marriage to tack on and create a long-term marriage.

Alimony

The IRS identifies alimony as payments made between spouses or former spouses pursuant to a divorce or separation agreement. Typically, alimony is deductible to the payor and includable as income to the payee for federal income tax purposes. However, the Defense of Marriage Act prohibits the federal recognition of same-sex marriages, and in turn precludes the IRS from recognizing a same-sex spouse as such. Although the IRS has not provided specific guidance on the issue, it seems clear that alimony payments are not tax deductible to the payor and may incur a gift tax liability. The IRS might alternatively consider the payments compensation for past services, with income tax, self-employment tax and possible withholding obligations. Either treatment will incur tax consequences that could be financially devastating to the family.

Property Division

In "traditional" divorces, opposite-sex couples rarely invokes tax consequences during the division of their marital assets. Such property transfers meet specific IRS exemption rules. Same-sex couples on the other hand can be saddled with a large tax liability as a result of property division.

The Defense of Marriage Act disqualifies same-sex spouses from the tax exemptions for property transfers made pursuant to a divorce decree. Instead, same-sex couples incur a gift tax liability for most transfers made between the spouses or former spouses in excess of $13,000. For example, if one spouse transfers $30,000 to the other spouse for property settlement, $17,000 would be taxable. In addition to gift tax, same-sex couples must be aware of capital gains tax when the home is transferred from joint ownership to one spouse.

A specific part of property division is the ability of a spouse to transfer property to a spouse or former spouse by qualified domestic relations order (QDRO) pursuant to the federal Employment Retirement Income Security Act (ERISA), a portion of a retirement plan or tax sheltered annuity. The tax treatment of such transfers depends on the word "spouse." In other words, in order to qualify for the tax-free transfer benefits, the relationship must be recognized by the IRS as a marriage. Under the Defense of Marriage Act, which defines marriage as between a man and a woman, a QDRO is not a vehicle available to same-sex couples to transfer retirement assets tax-free. Instead, same-sex couples must pay taxes and early withdrawal penalties on transfers made to the other spouse, regardless of whether it is deposited into the other spouses’s retirement account.

Parental Rights & Responsibilities

New Hampshire follows the legal principal that a child born into a marriage is presumed to be the legal child of both spouses. This presumption of legitimacy may be attacked however, and if successful could drastically affect the non-biological parent’s right to seek parenting rights and responsibilities, including residential responsibilities. Although the step-parent statute might be a useful tool in this circumstance, the parenting rights accessed through this avenue could look much different than the rights of a legal parent. Co-parent adoption is the safest way to establish protected parenting rights for each spouse.

A much needed mandatory self-disclosure rule is coming to New Hampshire on December 1, 2011. The concept of the rule is to streamline the discovery process by exchanging required financial documents early in the litigation process so that each party has the information they need to be prepared for mediation and a temporary hearing. The rule should also reduce common disputes, such as relevancy, that unnecessarily take up court time and increase litigation costs.

 

Family Division Rule 1.25-A applies to all new actions in the family division for:

 

·         divorce

·         legal separation

·         annulment

·         civil union dissolution

 

An abbreviated version of the rules applies that requires disclosure of documents described sections (a) through (e) in the following cases:

 

·         parenting petitions

·         child support petitions

·         petitions to enforce or change court orders in parenting, divorce, legal separation, or civil union dissolution cases

 

Parties must provide the above documents no later than either forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the temporary hearing or initial hearing on the petition, whichever is earlier. A First Appearance does not qualify as an initial hearing.

 

The rule obligates each party to provide the following documents to the other party:

 

(a) A current financial affidavit in the format required by family division rule 2.16, including the monthly expense form.

 

(b) The past three (3) years’ personal and business federal and state income tax returns and partnership and corporate returns for any non-public entity in which either party has an interest, together with all tax return schedules, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedule C, Schedule E and any other schedules filed with the IRS.

 

(c) The four (4) most recent pay stubs (or equivalent documentation) from each current employer, and the year-end pay stub (or equivalent documentation) for the calendar year that concluded prior to the filing of the action.

 

(d) For business owners or self-employed parties, all monthly, quarterly and year-to-date financial statements to include profit and loss, balance sheet and income statements for the year in which the action was filed; and all year-end financial statements for the calendar year that concluded prior to the filing of the action.

 

(e) Documentation confirming the cost and status of enrollment of employer provided medical and dental insurance coverage for:

 

i. The party,

ii. The party’s spouse, and

iii. The party’s dependent child(ren).

 

(f) For the twelve (12) months prior to the filing of the action, any credit, loan and/or mortgage applications, or other sworn statement of assets and/or liabilities, prepared by or on behalf of either party.

 

(g) For the twelve (12) months prior to the filing of the action, documentation related to employee benefits such as but not limited to stock options, retirement, pension, travel, housing, use of company car, mileage reimbursement, profit sharing, bonuses, commissions, membership dues, or any other payments to or on behalf of either party.

 

(h) For the twelve (12) months prior to the filing of the action, statements for all bank accounts held in the name of either party individually or jointly, or any business owned by either party, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties’ minor child(ren).

 

(i) For the twelve (12) months prior to the filing of the action, statements for all financial assets, including but not limited to all investment accounts, retirement accounts, securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties’ minor child(ren), 401K statements, individual retirement account (IRA) statements, and pension-plan statements.

 

(j) For the twelve (12) months prior to the filing of the action, any and all life insurance declaration pages, beneficiary designation forms and the most recent statements of cash, surrender and loan value.

 

(k) For the six (6) months prior to the filing of the action, statements for all credit cards held by either party, whether individually or jointly.

 

(l) Any written prenuptial or written postnuptial agreements signed by the parties.

 

Same-sex marriage and divorce needs a larger solution then the state’s rights approach. Texas Governor Rick Perry, a potential presidential candidate, recently discussed his views on New York’s legalization of same-sex marriage. Perry said: “You know what? That’s New York, and that’s their business, and that’s fine with me. Our federal government is engaged with far too many things they shouldn’t be involved with at all." The problem with that view is that once it’s one state’s business, it’s every state’s business.

Historically, marriage has largely been left to the authority of the states. States issue marriage licenses, set the age of consent and prohibit certain family relations from entering into marriages. States also make laws regarding the dissolution of marriages, alimony, child support, property division and custody. But the federal government has its say as well. Congress enacted the Defense of Marriage Act, defining marriage for federal purposes as the union of one man and one woman. More importantly, DOMA specifically relieves states of the obligation to treat a same-sex marriage from another state as a marriage under its own laws. And that’s the trouble.

 

In today’s mobile society, where families easily move across state boundaries for jobs, family, retirement, and education, the failure of another state to recognize a same-sex marriage leaves families in legal limbo and without access to justice if divorce becomes necessary. A spouse, with no other means of support, may be prevented from seeking alimony. A child may be barred from seeing her non-biological parent, to her great detriment. A couple may be forced to remain legally bound to one another, long after they have separated, because their home state refuses to recognize the marriage and allow access to the family court system.

 

These situations and the devastating effects it can have on a family, demand remedy. I make the case for justice, setting aside the legal arguments of both sides of the same-sex marriage debate, from equal protection to the 10th amendment to the full faith and credit clause. The federal government must mandate that same-sex families may dissolve their relationships and settle custody disputes wherever they may move in the country. Until the federal government acts, New Hampshire, which requires the person seeking the divorce to have resided in the jurisdiction for one year, must allow same-sex families who have moved from New Hampshire to access the court system to dissolve marriages entered into in New Hampshire.

Yesterday Maine voters repealed the state’s same-sex marriage law, six months after the law was passed by the legislature. In doing so, Maine became the thirty first state to oppose same-sex unions in a popular vote. Five states, Iowa, Connecticut, New Hampshire, Massachusetts and Vermont are performing same-sex marriages, with the District of Columbia and New York recognizing the marriages but not performing them. New Jersey and California allow for civil unions.

Question 1, brought forward pursuant to the “people’s veto” process in Maine’s constitution, asked voters “Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?" 53% of voters approved Question 1, about the same margin of victory as California’s Prop 8. Maine’s same-sex marriage law was put on hold after the proponents of Question 1 collected the required signatures to put the question to a popular vote.

 

What does this mean for Maine residents? Same-sex partners are still vulnerable without the financial and legal protections that a civil union or marriage offers. Maine’s same-sex couples must be very detailed in their estate planning, partnership agreements, and legal status as parents of any children of the relationship. Additionally, Maine residents must carefully consider the ramifications of seeking a civil union or marriage in other states. Although New Hampshire and Massachusetts are just quick drives across the Piscataqua River, entering into a legal relationship that cannot be dissolved in your own state can have very dire consequences.

I was reading a blog post today by photographer Samantha Warren at Samantha Warren Weddings in which she mused on a tweet by Dita Von Teese that pondered "Did you all know that I only tell you the fun & glamorous things that I do, not the boring & unpleasant things?"  Sam writes in response:

Ms. Teese’s tweet summed up one of the significant snags I see with social media, and that is that while you may put your life out there through Facebook, Twitter and blogging, it’s life filtered, often for a particular purpose. In musical terms, while social media claims to be a jam session, the control we have over our image through its technology makes it a best of collection.

So true! Most of us using social media from Facebook to Twitter chat and tweet about the happy goings on from our beach vacations to a new job.  However, mix a stressful divorce or parenting rights and responsibilities matter with social media and our emotions can often get the best of us. Instead of the happy face usually broadcast to the world, the anger and hurt rises up and reaches out through our fingertips, sendind out status updates or tweets best kept to ourselves.

Time Magazine’s recent article, Facebook and Divorce: Airing the Dirty Laundry, warns domestic relations litigants over the dangers of social media during litigation. Post a picture of your new BMW motorcycle after claiming the poorhouse? Tweeting about your crazy Saturday night party when you were supposed to be caring for the children? Updating your status about your date night with your new girlfriend, before you have separated from your wife? While you are posting about these things, opposing counsel is downloading your personal information from Facebook and Twitter and preparing to use it in court.

The moral of the story? Think before you post. Refrain from commenting about your spouse, his lawyer, the judge, the guardian ad litem. Do not post pictures of any content that can be used against you in court, including partying, gifts to or from new signifcant others or places you should not be. You’ll be better off for it, and your lawyer will thank you.

Today the New Hampshire House voted to approve HB 0436, which would legalize gay marriage in New Hampshire, by a vote of 186 to 179. The bill also includes provisions allowing clergy the freedom to determine whether or not to marry a gay couple. The bill will now move to the Senate for debate and vote.

Governor Lynch is opposed to gay marriage, and it is expected that he will veto the legislation. The Union Leader reports that his press secretary Colin Manning said:

The civil unions bill he signed into law prevents discrimination and provides the same legal protections to all New Hampshire families to the extent that is possible under federal law.

Source: Union Leader "NH House endorses gay marriage"

 

I read a post today that got me thinking from Attorney Ryan McKeen at his A Connecticut Law Blog titled Is CT’s civil union statute constitutional? Attorney McKeen ponders whether the civil union statute in Connecticut is unconstituional because it does not allow opposite sex couples to enter into a civil union. It is an interesting question that may never be answered. It also begs the question, should there be some form of civil union for opposite sex couples?

If an unmarried, homeowning couple with a child breaks up, the complexity of disentangling after the relationship ends can be frustrating. If the couple cannot agree on how to separate their property and how to parent their child, they would have to go to three different courts to resolve all the issues. The couple would head to Superior Court or the Family Division for parenting and child support, to Probate Court to resolve the home issue, and file an equity action in Superior Court regarding any disputed personal property such as a family pet.

Wouldn’t some kind of legal relationship the couple could enter into make the breakup easier on the family? At the same time, opposite sex couples do have the option to marry and benefit from the rights that marriage entails, but they choose not to. What do you think?

Although the country’s attention was, for the most part, focused upon the presidential election on November 4th, there were several ballot questions across the country regarding same-sex marriage. The most high profile was Proposition 8 in California, a ballot measure that passed and  amended the state constitution to define marriage as between one man and one woman. The passage of Prop 8 reverses In Re Marriage Cases, the California Supreme Court case that legalized same-sex marriage in the state this past June. Arizona and Florida also passed similar measures on November 4th, defining marriage as between one man and one woman with Prop 102 and Prop 2 respectively.

The election results highlight the vast divide throughout the country over same-sex marriage, with over twenty five states now banning same-sex marriage, two states allowing same-sex marriage and several states, including New Hampshire, allowing some form of civil union or domestic partnership. Additionally on a national level, the Federal Defense of Marriage Act defines marriage as it pertains to any Act of Congress or administrative rulings and regulations as “only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.” With the wide disparity of laws from state to state, the inconsistency can leave families in legal limbo without a way to dissolve a legal relationship.

New Hampshire residents, thanks to the civil union statute, will not be left in legal limbo. If you have been married in another jurisdiction, or entered into a civil union, you may dissolve the relationship as though it were a civil union in New Hampshire.