Like heterosexual couples, same sex couples will inevitably have to deal with issues addressing divorce, death, illness and child custody.   As a lawyer, I am always mindful of things that can be done now to prevent future problems.  With that in mind, I present the four tips to protect same-sex couples:

1.  Sign a Pre-Nuptial Agreement

 A  pre-nuptial agreement in its most basic form, defines the parties’ respective rights when the marriage ends in either the case of divorce or death.  The agreement could address issues of the distribution of property, maintenance and inheritance rights.   It the parties are already married, the parties could consider entering into a post-nuptial agreement.

  2. Prepare a healthcare proxy for each family member.

  A health care proxy enables a designee to obtain medical information to make medical decision on behalf of his/her loved ones.  Since not all states recognize same sex marriage, it is uncertain what rights would be afforded to a same sex spouse if the other becomes ill in a jurisdiction that did not recognize the validity of the marriage.  To ensure that your spouse will be entitled to your medical information and to make medical decisions should you be unable, provide him/her with a health care proxy.   

  3. The non-biological parent should adopt the children of the marriage.

  Child custody laws involving same sex marriages are, no pun intended, in their infancy.   Should the non-biological parent (or in the case of adoptive children, the non-adoptive parent) be not deemed the “legal” parent of a child, the party could be denied parenting time, custody or visitation, with children of the relationship.

  4. Develop an estate plan; draft a will.

  In order to ensure that your spouse inherits from you, no matter your jurisdiction, draft a will and all necessary trust documents to ensure that your wishes are respected in the event of your death. 

          While many of these same concerns are relevant to heterosexual copies as well, because of the conflicts between the states regarding the rights of same sex couples, it is more important for you to take the necessary to adequately protect your rights.  

New York officials are preparing for a surge in in applications for marriage licenses when the floodgates open.

  Unfortunately, at some time in the foreseeable future, there will be a corresponding surge in same sex divorce.    As I noted, when interviewed by the New York Post:

Lost in the euphoria of the historic passage of New York's same-sex marriage bill is the inevitability of bitter break-ups.

There will be support claims to resolve, property to divide and custody issues to settle, as with any other divorce.

"The same issues present themselves with same-sex couples: How do we split assets? What do we do with the children?" Clement said. "The law doesn't change merely because you have same-sex partners

Officials predict that about 21,000 same sex couples will wed in New York in the next three years. If the state's current divorce rate of 8.4 percent holds, about 1,800 of those marriages will not survive.

While same sex marriages cannot be validly performed in New York, New York will recognize marriages validly performed in another jurisdiction.  This rule does not extend such recognition where the foreign marriage is "contrary to the prohibitions of natural law or the express prohibitions of a statute"   

The court clearly and unequivocally announced that “Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule.”

There is a growing trend by New York courts to recognize the validly of same sex marriages entered into elsewhere.   At a minimum, New York courts seem to be increasingly inclined to uphold the validity of same sex marriages as it affects the couple’s rights in the event of death or divorce - events, which ironically, terminate the marital relationship.    In this case, the couple was found to have been validly married so that the survivor was deemed to be a spouse for inheritance purposes.  Likewise, I have had success for obtaining divorces for same sex couples

 The New York Times is reporting that:

  A long-term decline in marriage accelerated during the severe recession, according to new data from the Census Bureau, with more couples postponing marriage and often choosing to cohabit without tying the knot.

 According to the federal data, the share of young adults who have never married climbed from 35 percent at the start of the decade to 46 percent in 2009.      While the rate of marriage is down, it appears more people are cohabiting. 

Why cohabitation instead of marriage?   I suppose cohabitation allows couples to enjoy the social, economic and other benefits of marriage, without the associated costs.  As one interviewee expressed, “Yeah, it definitely takes money to get married . . . being married probably means eventually buying a house and having kids, right?”

Recently, a New York court answered the question what happens to an engagement ring when it is the woman who is already married and the “engagement” is broken.

In the case Lipschutz v. Kiderman, the appellate court explained that:

 where a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the marriage did not take place

So, if a man gives a woman a ring, knowing that she is married, and the parties fail to wed, then the woman may keep the ring.

An engagement ring is a conditional gift, made in contemplation of marriage.  If the marriage occurs, the condition has been satisfied and the gift is complete; the recipient, generally the woman, gets to keep the ring.   If the marriage does not take place, the condition has not been satisfied, and the ring need be returned. 

However, if someone is already married at the time of the engagement, they cannot legally enter into a contract to marry.   In many of the reported cases, it is the prospective groom who gives an engagement ring while married to another woman.  Whether or not the marriage takes place, his fiancé is legally entitled to keep the engagement ring. 

In the Lischutz case, it was the woman who was married at the time of the engagement.  The Court said that if the prospective groom actually knew this his fiancé was married and could not contract to marry, when he gave her the ring, she would get to keep it.   If he did not know she was married, he would be entitled to the return of the ring.

The bar against a recovery of the engagement ring “is intended to protect an innocent party, not one aware of the other’s disability to contract a marriage at the time of the engagement.” 

Here are the facts as recited by the Court:

Nidia well knew, Howard's dementia had advanced to the point that he often had difficulty recognizing family members, had lost the ability to understand his legal and financial affairs or even to attend to his own basic hygiene, and could not be left alone for any period of time. Nidia had also been informed that, due to the progression of his prostate cancer, Howard was not expected to live much longer. With knowledge of these facts, Nidia waited until Nancy, Howard's primary caretaker, left for a vacation, and then married Howard, without informing Nancy or any other member of Howard's family until after the fact.

The facts go on to recite that somehow, before his death, Nidia manipulated Howard’s finances and somehow became the sole beneficiary on Howard's retirement account.

Five years after Howard’s death, the marriage was declared to be “null and void” on the ground that Howard was "incapable of consenting to a marriage for want of understanding."

In New York, a spouse has a right of election which entitles a surviving spouse to portion of the decedent’s estate. The purpose of this provision is to prevent one spouse from dis-inheriting the other.

In this case, Nidia sought to collect her elective share of Howard’s estate.

Though the Court found that technically Nidia had a right to an elective share as a “surviving spouse”- it applied the age old principle that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong” and denied Nidia her right to her elective share.

While the Court was clearly offended by Nidia’s conduct, its ruling was also motivated by the need to protect the elderly and infirm from overreaching and undue influence. The Court made it clear that even in absence of statutory prohibitions, it will not condone marriages to the elderly and those lacking capacity motivated by a desire to cheat them or their estates.
 

The study conducted at the University of California at Berkley, found a link between the use of pronouns and marital happiness. According to the study, reported in the Daily News and in the Domestic Diversions blog, middle-aged and older couples who used words like “we” and “us” when discussing their marital disagreements experienced less stress than those couple who used the words “I” “me” and “you.”

Not surprisingly, more older couples than middle aged ones identified themselves as “we;” shared life experiences, birth, death and other milestones, probably gave the more senior couples a greater sense of shared identity.

According to the Daily News, earlier studies have shown that “we-ness” versus “me-ness” is a strong indicator of how happy younger couples are.

It would be interesting to see if the pronoun/identity factor is predictive of divorce. Do couples who team up to become a “we” stay together? Conversely, do couples who become polarized “me’s” divorce?
 

If the voicemail released of Tiger Woods pleading with a lover “Can you please take your name off my phone?” is authentic, perhaps the car accident was the result of a heated argument that escalated violently out of control. On the other hand, the accident could have resulted from a distraught Tiger’s failed attempt to drive away from the house to allow everyone time to cool off.

Regardless, despite the public criticism, Tiger was well counseled not to speak with the authorities. In the end, the matter seemed to be closed with the payment of a token fine and four points on his driver’s license. Had Tiger spoken to the police, either he or his wife could have been arrested as is well explained by Elie Mystal in her piece on Above the Law:

In 1991, Florida became one of many states to set up a pro-arrest policy in domestic-violence cases. For years, feminist advocates had complained that police treated domestic-violence cases as private, family matters and assumed the abused spouse would never follow through and press charges.
Beginning in the 1990s, laws began virtually to force the police to take action. The new statutes direct police to figure out who was the “primary aggressor” in a domestic dispute. They make a call based on a checklist (bruises, disparity of physical size), and then they make an arrest. Howls of protest from the abused spouse are to be ignored: “The decision to arrest and charge shall not require the consent of the victim or consideration of the relationship of the parties,” the Florida law reads.

Remember, this is a good law. It protects victims of domestic violence who are dissuaded from assisting the criminal prosecution of their abusers out of fear of retribution.

And (rightly) the door swings both ways. It doesn’t take into account the gender of the alleged attacker or victim. The police have a duty to investigate Elin Nordegren and pursue any criminal charges that may be relevant.

That Tiger might not want this to happen couldn’t matter less. It’s not his call.
. . .
Well, if the allegations about Elin Nordegren are true and Tiger wants to keep her out of jail, then his best response right now is to keep his mouth shut. Especially when cops are around. You lawyers know the drill: don’t talk, don’t answer questions, don’t cooperate, don’t agree, don’t speak English, don’t remember — for the love of God, just shut up!
 

The Mayo Clinic offers ten tips into dealing with holiday stress. 

1. Acknowledge your feelings. If someone close to you has recently died or you can't be with loved ones, realize that it's normal to feel sadness and grief. It's OK to take time to cry or express your feelings. You can't force yourself to be happy just because it's the holiday season.

2. Reach out. If you feel lonely or isolated, seek out community, religious or other social events. They can offer support and companionship. Volunteering your time to help others also is a good way to lift your spirits and broaden your friendships.

3. Be realistic. The holidays don't have to be perfect or just like last year. As families change and grow, traditions and rituals often change as well. Choose a few to hold on to, and be open to creating new ones. For example, if your adult children can't come to your house, find new ways to celebrate together, such as sharing pictures, emails or videotapes.

4. Set aside differences. Try to accept family members and friends as they are, even if they don't live up to all your expectations. Set aside grievances until a more appropriate time for discussion. And be understanding if others get upset or distressed when something goes awry. Chances are they're feeling the effects of holiday stress and depression too.

5. Stick to a budget. Before you go gift and food shopping, decide how much money you can afford to spend. Then stick to your budget. Don't try to buy happiness with an avalanche of gifts. Try these alternatives: Donate to a charity in someone's name, give homemade gifts or start a family gift exchange.

6. Plan ahead. Set aside specific days for shopping, baking, visiting friends and other activities. Plan your menus and then make your shopping list. That'll help prevent last-minute scrambling to buy forgotten ingredients. And make sure to line up help for party prep and cleanup.

7. Learn to say no. Saying yes when you should say no can leave you feeling resentful and overwhelmed. Friends and colleagues will understand if you can't participate in every project or activity. If it's not possible to say no when your boss asks you to work overtime, try to remove something else from your agenda to make up for the lost time.

8. Don't abandon healthy habits. Don't let the holidays become a free-for-all. Overindulgence only adds to your stress and guilt. Have a healthy snack before holiday parties so that you don't go overboard on sweets, cheese or drinks. Continue to get plenty of sleep and physical activity.

9. Take a breather. Make some time for yourself. Spending just 15 minutes alone, without distractions, may refresh you enough to handle everything you need to do. Take a walk at night and stargaze. Listen to soothing music. Find something that reduces stress by clearing your mind, slowing your breathing and restoring inner calm.

10. Seek professional help if you need it. Despite your best efforts, you may find yourself feeling persistently sad or anxious, plagued by physical complaints, unable to sleep, irritable and hopeless, and unable to face routine chores. If these feelings last for a while, talk to your doctor or a mental health professional.
 

Most of all, have a wonderful thanksgiving. 

 

 

The Court, in a 4-3 decision did not settle the question  of whether same-sex marriages performed in other states should be recognized. Judge Eugene F. Pigott Jr., writing for the majority, expressed “hope that the Legislature will address this controversy.”

The three judges in  a concurring decision,said that the court should have addressed the wider issue because New York law already allows for the recognition of marriages that are considered legal elsewhere.

In her concurring opinion,  Judge Carmen Beauchamp Ciparick, wrote  “that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our state’s longstanding marriage recognition rule.”

The two case evolved out of  the policy of  the Department of Civil Services, extending health insurance benefits to the partners of state and local workers who were married out of state and a similar policy in Westchester County.

Wall Street Journal.

No one would ever claim that lies about infidelity would be acceptable. But, as Ms. Bernstein urges, “the fibs and feints and little white lies that serve as a social salve and help a relationship run smoothly.”

Some of the acceptable reasons, to fib, she argues, include- “to avoid conflict, to gain approval, to save face or just to be kind.”

Every man learns, for instance, that the answer to the question “does this outfit make me look fat” is an emphatic “No!” Perhaps this is not a lie- maybe the rose colored glasses from which a husband views his wife takes ten pounds off her backside.

Asking do I look fat or which outfit looks better on me calls for an opinion. But, would it be acceptable to lie about a fact?

One of the major reasons for divorce is that there is a loss of trust. Where do you draw the line between little inconsequential lies and the complete betrayal of trust? If the lie is of little consequence, why even bother to lie? If the entire foundation of the marriage is based on lies, isn’t the marriage destined to self-destruct?
 

The first topic of discussion  is the question I am  probably asked most often: When people first wed, they are in a state of bliss and believe that their marriage will be forever. Why you think half of marriages fail?   What do you think?

Have no fear- I will continue to write this blog.   

In the same week Governor Paterson announced that he was introducing legislation to recognize same sex marriage, a couple decisions involving the custody rights of same sex marriages were announced.  

In the first, Debra H. v. Janice R., the Appellate Division, First Department, held that the same sex partner of a woman who gave birth did not have standing to assert parental rights after the parties broke up.   The Court ruled that although Debra H., the non biological parent,

 [S]erved as a loving and caring parental figure during the 2 ½ years of the child’s life, she never legally adopted the child. 

Based upon this reasoning, the court held that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law §70.  

 In another case, a woman whose donated egg was implanted in her same-sex partner was permitted to adopt the resulting child. The parties were lawfully wed in Holland.  

  This case presented the novel issue whether a party, who was not legally married to the child’s mother at the time of conception, but who is genetically the mother can legally adopt the child. 

 In Matter of Sebastian, the Surrogate granted the petition, even though alternatives to adoption may have been available.   Two viable alternatives were obtaining an order of filiation or being listed as a parent on the child’s birth certificate. 

 The parties sought an adoption because they felt only an order of adoption would ensure that all the states and the federal government would recognize the adoptive mother as the child’s parent.  

 The Court specifically noted that

 Although it is true that an adoption should be unnecessary because Sebastian was born to parents who marriage was legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the United States.

 These cases further highlight complex child custody issues faced by same sex couples in the absence of legally recognized marriage.

As pointed out at Pressconnect.com, this divorce is a bit ironic.

New York doesn't allow same-sex marriages, but state Justice Molly R. Fitzgerald allowed Lauren Wells-Weiss to divorce her partner, Shari Weiss. The two married Aug. 13, 2004, in Toronto, after a private religious ceremony before family and friends in Ithaca in 2001.

The case is paradoxical, said both women's attorneys, because in their opinion the judge recognized the lesbian couple was married, although New York state law doesn't allow same-sex marriages.

New York will recognize as valid, marriages which were legal where they were solemnized, even if they would not valid if the marriage took place in New York.

Although New York will not allow same sex couples to wed, in the past year, there has been a line of cases which have recognized, as valid, same sex marriages lawfully performed in Canada and Massachusetts. In these cases, courts have extended to same sex couples legal rights previously only available to lawfully wed couples.

My only disappointment is that I had hoped that one of the same sex divorce cases I am presently working on would be New York’s first. Perhaps I will have to take consolation in representing litigants in the first New York City same-sex divorce.

Although New York will not recognize a same-sex marriage performed within the state, with a few exceptions, courts and state agencies will recognize marriages solemnized in Canada, Massachusetts and other states where same sex marriage is legal.

In Matter of the Estate of H. Kenneth Ranftle, Surrogate Judge Kristin Booth Glen designated J. Craig Leiby as the "surviving spouse and sole distributee" of H. Kenneth Ranftle, who died on Nov. 1, 2008, just five months after they married in Quebec.

This decision confirms that a person may provide for his/her same sex spouse to inherit his/her estate as a spouse. But this decision, raises an interesting question- in New York, a spouse cannot be dis-inherited. Each spouse has a right of election to take a prescribed minimum percentage of his/her spouse’s estate. This right of election ensures that one spouse inherits something from the other.

The question then becomes, what would happen if Mr. Ranftle died with a will that made no provision for his spouse, Mr., Leiby- would the court allow Mr. Leiby to assert his right of election? It seems to me it would be that it would be inconsistent not to.

Likewise, had Mr. Ranflte died without a will (intestate), would Mr. Leiby have the right to inherit as his spouse, as would be the case in a heterosexual marriage?

If New York is going to recognize, as valid, marriages lawfully performed in jurisdictions that permit same sex marriages, then, Courts will have to recognize and enforce all of the rights that arise from a lawful marriage. It follows that same sex spouses should have the rights of election and to inherit in cases of intestacy.
 

As reported on Cityfile.com: 

Next week the city opens its new, 24,000-square-foot Manhattan Marriage Bureau following $12 million in renovations to the building. (The mayor tapped his personal interior designer, Jamie Drake, to do the job.) . . . It's all part of Michael Bloomberg's plan to unseat Las Vegas as the nation's "wedding capital" and turn New York into a marriage destination!

When I went to get my marriage license ten years ago, I thought that that the marriage bureau in New York’s municipal building was a run down and really depressing place. (It was also odd that New York City  would not accept cash as payment for the marriage license.   Isn't cash still good legal tender?.)

The new wedding palace features "lavish" extras like iPod docking stations and an oversized photo of City Hall to use as a backdrop for pictures. And there's plenty of overpriced crap on sale to help pay for it all, like flowers ($4 to $7 for a single stem), hairspray ($4), disposable digital cameras ($16.25), and tissues ($1.75 a pack).

Hopefully, the new and improved marriage bureau will be the first of many happy memories for the newlyweds and provide a shot in the arm for the New York economy.
 

The Times notes that:

In a normal economy, couples typically build equity in their homes, then divide that equity in a divorce, either after selling the house or with one partner buying out the other’s share. But after the recent boom-and-bust cycle, more couples own houses that neither spouse can afford to maintain, and that they cannot sell for what they owe. For couples already under stress, the family home has become a toxic asset.

In LadyBlog, Theodora Blanchfield opines that the difficulty in liquidating the marital home is a good thing. She writes:

. . . I think any other obstacle to divorce is actually a good thing. Combine that with the housing crisis, and you might actually have people thinking twice about buying a home they can’t afford or marrying someone they’re not in love with. For being a single girl living in New York City, it might be a little Pollyanna-ish for me to say this, but when I marry, it’s going to be forever, and when I buy a house it’s going to be something I can pay off before I die.

This is a wonderfully optimistic view when entering into a marriage or even when purchasing a home. However, when marital difficulties arise or when one spouse unilaterally decides that he/she no longer wants to be married, any barrier to divorce has the effect of imprisoning the parties.

One of the commentators to Mr. Blanchfield’s post best sums up the short-sightedness of her reasoning that the present economic conditions are somehow good for marriage.

When my wife decided a year ago that, after almost six fantastic years, she’d rather not be married anymore, we decided to try and fix things. It didn’t work, and the housing crisis hit. Now, although we have no difficulty paying our mortgage, neither of us can afford to move out.

I thought I was marrying for forever too, and three years ago our house looked like a pretty good investment. We got a fixed rate so we were never at any risk of foreclosure. Now I am stuck living in a house with a woman who no longer loves me.

Mr. Blanchfield ignores the simple fact that barriers to divorce do not compel a couple to resume any part of the martial relationship. The obstacles merely lock the parties in a dead relationship and prevent them from moving on with their lives. The inability to sell the marital home or to untangle their finances imprisons an estranged couple under the same roof. How is this a good thing?
 

In her article, Ms. Sims wrote:

In my mind, once I’m married it’s FOR LIFE. There is no breaking up or getting a divorce. We are going to make it work and grow old together. Period. I do agree that if you make divorce an option, even if only in the back of your mind, you give yourself permission to not work as hard as possible to make the relationship work.

I am not so cynical to believe that most people enter marriage viewing it as temporary condition. Most of my clients entered into their marriages in the good faith belief that they would spend the remainder of their lives with their spouses. But, life is not linear or always go as planned. Relationships evolve. People change. Two people, just because they are wed, do not necessarily grow at the same rate or in the same direction. When a couple no longer shares the same goals, visions or values and their differences can no longer be reconciled, even after counseling, should they be compelled to remain together? For what purpose?

Then, there are the issues of infidelity, domestic violence and substance abuse. Trust and respect are the cornerstones of a healthy relationship. If one of the spouses has been badly betrayed and the marital relationship has irretrievably broken down, why should these people stay together?

When dating, few people acknowledge that they are abusers. Should a battered spouse be compelled to remain in a marriage because of the simplistic view that marriage is forever?

While some people may prematurely end their marriages, most do not. The vast majority of divorcing couples elect to end their marriage as a gut wrenching last resort choice. Divorce only becomes an option after their attempts to salvage the marital relationship fail. No one should be forever imprisoned in a bad marriage because of the child-like belief that marriage has to be forever.

When Ms. Sims finally weds, I hope her relationship will be a healthy and nurturing long-lasting one. But, if life does not go as planned, it is good to know that are options.
 

While the law in New York regarding the return of engagement rings is well settled, the article points out that there is no uniform national rule about the return of engagement rings if the couple fails to marry.  

Most states, New York included, follow the rule that: 

. . . in recent years courts have almost always held that the ring goes back to the buyer, no matter the circumstances. The premise is that the engagement ring is a conditional gift — the condition being that a marriage take place. And if it does not, the agreement is rendered null and void. Furthermore, courts have ruled that it does not matter who broke the engagement, the donor or the recipient.

In New York, the exception to the to the rule is that if the man is married when he proposes and gives an engagement ring to his second bride-to-be, he cannot legally contract to marry. If the second marriage does not take place, he does not get the ring back.

For those who care, the law may be different from what is good etiquette or chivalrous. According to the article proper etiquette dictates that:

. . . the person who breaks the engagement is responsible for making good. “If the woman breaks it, she should send the ring back immediately,” Ms.[Letitia] Baldrige said. “If it is the man, he should say, ‘Of course you keep the ring.’ ”

As for the laws of chivalry, Raoul Felder questioned “I can’t understand how a man is not embarrassed to ask for his ring back. It always amazes me what happened to chivalry.”  

I wonder if Mr. Felder represents only women or, if he represents men, does he advise them that though legal entitled to the return of the engagement rings, they should not seek to recover it because they are being un-chivalrous?