Divorce Issues for the

LGBT Couple

September 17, 2014

Welcome

We are pleased to welcome you to today’s webcast.

In order to qualify for your CPE Certificate, you will need to:

• Remain logged on for at least 75 minutes

• Respond to at least 5 of the 6 polling questions that will be presented

We would appreciate if you would complete the evaluation survey following the event. A link to the survey will be emailed to you automatically within the hour following the webinar.

You may submit questions and we will try to address them during the program. However, if time does not permit us to answer a question posed during the webcast, it will be answered offline after the event.

For those who meet the above criteria, a CPE certificate will be deposited into your Checkpoint Learning account. To apply for a complimentary Checkpoint Learning account, visit the Executive College page at www.eisneramper.com.

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• Follow us on Twitter for the latest on Divorce Issues for

the LGBT Couple and related subjects: @EisnerAmper

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Presenters

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Hubert Klein, Partner, EisnerAmper LLP Debra Guston, Managing Partner, Guston & Guston, LLP Randall M. Kessler, Founding Partner, Kessler & Solomiany Deborah H. Wald, Founder and Senior Partner, The Wald Law Group

Polling Question #1

We’ll now ask you a series of questions that will give our presenters a clearer picture of today’s audience. Remember, all answers are show in aggregate and are anonymous .

• Do you live in:

A. A Same Sex Marriage Recognition State

B. A Same Sex Marriage Non-recognition State

C. Don't know

• If you are in a same-sex relationship, are you in any of the following:

A. Marriage

B. Civil Union

C. Domestic Partnership

D. All or some of the above

E. None of the above

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Polling Question #2

Again, these questions are asked to help our presenters understand the audience of today’s webinar.

• Did you file a joint federal income tax return for 2013 with your same-sex spouse?

A. Yes

B. No

C. Can't remember

D. Not married

E. Does not apply

• Did you file a joint state income tax return for 2013 with your same-sex spouse?

A. Yes

B. No

C. Can't remember

D. Not married

E. Married, but my state won't let me file a joint state income tax return

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Pre-Marital Agreements for Same Sex Couples

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Pre-Marital Agreements for Same Sex Couples

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1. Choice of law provisions - which jurisdiction governs interpretation?

2. Does agreement conform to state statute where parties live or intended jurisdiction?

3. Is there an agreement that pre-dates marriage availability? - is it voided with marriage or new agreement?

4. Does agreement reflect continued open questions?

Polling Question #3

• Can pre-marital agreements be voided with marriage or

a new agreement?

A. Yes

B. No

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Divorce Issues – Non-Recognition States

1. Is the couple "wed-locked?“

2. For alimony and equitable distribution evaluation, what date governs commencement of relationship?

3. For couples in non-recognition states:

– Need to tax-effect:

a. Alimony – not deductible under state law/deductible federally

b. Equitable Distribution if there is a state gift tax

c. QDRO's will work for federal purposes, but perhaps not for state income tax

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Divorce Issues - Recognition States

1. For alimony and equitable distribution evaluation, what date governs commencement of relationship?

2. Have local rules caught up?

3. Do couples truly understand the obligations of marriage when they divorce?

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Polling Question #4

• For alimony and equitable distribution evaluations in Same Sex

Recognition States, what date governs the commencement of the

relationship?

A. Date of Cohabitation

B. Date of Civil Union

C. Date of Marriage

D. None of the Above

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Palimony and other equitable claims –

pre-marital years

1. Palimony

2. Constructive Trusts

3. Ratification theory

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Figuring Out Your Client’s Status

• Very unusual for a family law attorney to encounter a heterosexual client who does not know if s/he is married

• Much more common with lesbian, gay and trans clients!

– Prior to Windsor, a gay man in CA could be in any of EIGHT OR MORE DIFFERENT statuses!

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Possible CA Statuses

• Married in 2004 in SF = marriage voided by CA Supreme Court

• Married where legal before 2008 in violation of evasion or reverse evasion statute (e.g. in MA) = status unclear

• Married anywhere where legal before 11/5/08 = MARRIED

• Married anywhere between 11/5/08 and 6/28/13 = FC 308(c) “marital equivalent” (although now will be recognized as a marriage)

• Registered as DP’s in CA = FC 287.5 marital equivalent

• Registered as DP’s or in CU from outside CA = treated as DP if substantially equivalent to CA DP status (FC 299.2)

• Registered as DP’s in CA but not with the state (e.g. with county or employer) = no state or federal relevance (but could there be a putative spouse issue??)

• Never registered, never entered into CU, not married = potential Marvin issue

• Married since 6/26/2013 = MARRIED 15

Effect of Decisions on

Married Same-Sex Couples with Children

• When considering parental status, must consider at least 4 factors:

– Genetics

– Procreative Intentions

– Post-Birth Parenting Behavior

– Marital/DP Presumptions

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Polling Question #5

• When considering parental status which of these factors

come into play?

A. Genetics

B. Procreative intentions

C. Post-birth parenting behavior

D. Marital/DP presumptions

E. All of the above

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Special Issues re

Procreation Through ART

• Particularly relevant in LGBT community because committed couples frequently lack necessary gametes for procreation

• Law may be clear about how to “do it right,” but requires significant medical and legal intervention

– Donor insemination with MD involvement

– Surrogacy

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3rd Party Involvement in Procreation

• Use of known 3rd parties much more common in LGBT community

• Can lead to difficulties in identifying/clarifying roles of multiple players (e.g. donor-daddies and surrogate-mommies)

• Critical importance of written agreements

– Wonderful opportunity for collaboration by mental health and legal providers!

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Effect of DOMA Decisions on

Married Same-Sex Couples with Children

– Assisted Reproduction

• Artificial Insemination: UPA

• Husband of woman being inseminated, who consents to insemination, treated as “natural” second parent

• Does this apply to same-sex couples

– Stepparent Adoptions

• CA Family Code § 9000

• Note re: federal Adoption Tax Credit

– Federal “spouse” not entitled to credit

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Effect of DOMA Decisions on

Married Same-Sex Couples with Children

• Parentage/Adoption

– Marital Presumptions:

• Conclusive

• Rebuttable

• Is even “conclusive” presumption rebutted by proof of non-paternity?

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Effect of DOMA Decisions on

Married Same-Sex Couples with Children

• Despite marital presumptions and other favorable laws, same sex couples still need Judgments confirming parentage!

– Full faith & credit clause does not apply to status

– DOMA § 2 still in effect

– Judgment of Marital Dissolution may be insufficient

• Need specific findings and orders re: parentage

• Better if sole basis is not marital law

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DOMA Sec. 2

“No State, territory, or possession of the United States, or Indian Tribe, shall be required to give effect to any public act, record, or judicial proceeding of any State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or the right or claim arising from such relationship.”

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Parentage Issues in Dissolutions

• Disputes over legal parentage are more common in same-sex dissolutions

– Largely because of prevalence of couples where only one has a bio connection to kids

– “Of course I acted like you were our children’s 2nd parent while we were together, but we both knew you weren’t really a parent!”

• Lack of genuine belief in 2 parents often bleeds over into custody arena

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Polling Question #6

• Disputes over legal parentage in same sex dissolutions

are often due to the prevalence of couples where only

one has a biological connection to the children.

A. True

B. False

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Vulnerability of Transgender Parents

• Transgender parents continue to be very much at risk in the family courts!

– History of courts stripping trans parents of rights, denying them custody

– Makes written agreements and confirming legal actions (e.g. adoptions, parentage actions) essential

– Education is much needed in all arenas of family court system!

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Choosing the Right Team to Advise

You

• What to look for in an adviser in a same sex-divorce:

– Legal

– Financial

– Family Therapist

– Child/Parenting Coordinator

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Thank You

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Questions

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