Massachusetts will soon allow same sex couples from other states to wed reports theSteven Ballard in the Massachusetts Divorce & Family Law Blog.
As I previously reported, while New York will not allow same sex couples to wed, it will recognize as valid, marriages performed in jurisdictions that allow same sex marriage.
I guess New England will soon become a popular wedding andhoneymoon destination for New York’s same sex couples.
Following up on yesterday’s posting is this article, in today’s New York Post, (in which I was quoted).
The floodgates have opened; there will be thousands of same-sex marriages performed in California in the near future. In the aftermath, I anticipate a wave of same sex divorces.
At least, one court has already recognized the right of same sex couples to seek a divorce in New York.
In order to avoid the pain of divorce, same-sex marriage couples should be urged to proceed with caution. As pointed out in the Post:
Fools rush in, they said, even gay fools."It's not a decision to rush into," said Jim Key, a spokesman for the LA Lesbian and Gay Center.
In an environment where every day we are greeted with news about the troubled economy, we are thankful for any sign of economic growth.
Today, California began performing same sex marriages which may provide a boost to the local California economy.
The New York Times reported that:
The potential windfall of same-sex marriage was underscored this week in a study by the Williams Institute at the University of California, Los Angeles, School of Law, which estimated that over three years, same-sex nuptials would contribute $684 million to the state’s wedding industry and $64 million to the state budget.
The Times describes the cottage industry of performing the once forbidden same sex marriages:
It’s basically a godsend,” said Daniel Doiron, the general manager of the Ingleside Inn in Palm Springs, which is offering honeymoon specials from $479 bargain basement (boutonnieres, 15-minute wedding, 20 guests) to the “Elizabeth Taylor” at $29,999 (poolside villas, wedding cake and reception, ice sculptures, flowers, sit-down dinner for 200 and three nights in the honeymoon suite).
Not to jinx any of the nuptials, but, like heterosexual marriages, some of the same sex marriages will not be everlasting and will end in divorce. These same sex divorces will further drive the economy, as the parties will need to employ the services of lawyers, accountants, financial planners, mental health professionals, appraisers and other divorce professionals.
Governor David Paterson must be a follower of this blog.
I have written several times in the recent past about decisions in which the courts have recognized the validity of same sex marriages performed in other jurisdictions.
Now, the Governor has issued an directive requiring all New York State agencies to offer gay couples, wed in jurisdictions that allow same sex marriage (like Canada, Massachusetts and now California), the same legal rights as enjoyed by heterosexual couples.
According to the New York Times, “The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses. “
“In addition to conferring more rights on gay couples, the changes might also require more responsibilities. For example, the order that required certain employees of the executive branch to file financial disclosure documents for their spouses would also apply to gay spouses.”
There does seem to be a bit of a contradiction in that New York will not permit same sex couples to marry, but it will recognize the validity gay marriages performed beyond its borders.
A second appellate court went out of its way to implicitly recognize the legitimacy of same sex marriage in New York.
I previously discussed the case of Funderburke v. State of New York in which the claim of an employee of the Uniondale school district who sought health benefits for his same-sex partner was dismissed. The basis of the dismissal was that New York, at the time, did not recognize same sex marriage. The parties were validly married in Canada.
Since that time, as I have posted, New York courts began to recognize the validity of same sex marriages. In addition, the state has changed its position “regarding recognition of foreign same-sex marriages. The DCS now requires public employers within its jurisdiction to provide full spousal benefits to same-sex couples validly married in another jurisdiction, and requires all members of its health insurance program, including the District, to provide such benefits.”
Since there was no longer a dispute as to the validity of the marriage or the same sex partner’s right to health benefits, the appeal was moot. Nevertheless, the Appellate Division vacated the lower court’s order so as it prevent it “from spawning any legal consequences or precedent."
In doing so, the Appellate Court, went out of its way to remove any obstacles to the continued recognition of same sex marriages in New York. Thus far, two of the four Appellate Divisions have recognized same sex marriage
In the past weeks, I have commented on the two recent court decisions regarding same sex marriage and same sex divorce divorce. I just saw a funny television commercial for the Broadway show, November regarding these very issues.
In ad, the President (Nathan Lane) is asked by his aide for his view on gay marriage. He answers:
Gays should be allowed to marry, but not to divorce . . . therefore gaining new liberty and all the suffering that comes from knowing that there is no way out.
The (ad #2) can be viewed here
I am back from a much needed warm weather winter vacation with the family. Now, back to blogging.
While I was away, Justice Laura Drager rendered an important decision in the case Beth R. v. Donna M. Following the decision in Martinez v. Monroe County, which I discussed here, Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.
The decision went further, applying the expanding theory of equitable estoppel, to address the issue as to whether Beth's motion for declaration of her parental rights can be entertained by the court since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff's motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.
As pointed out in the Leonard Link:
Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent. The children were given Plaintiff's last name. The birth announcements presented Plaintiff as the parent of each child. J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles. The extended families of each party were encouraged to treat Plaintiff as a parent. Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators. Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children.And, of course, there is the marriage. "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view. Marriage is 'a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936). As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate. These factors significantly affect the children's welfare. Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."
Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well. And, of course, both children would suffer potential economic harm due to loss of support.
Now that the door is open to the judicial acceptance of same sex marriage, it will be interesting to see how the law evolves to provide for same-sex divorce.
A New York appeals court unanimously ruled that a gay couple's marriage in Canada should be recognized in New York.
As pointed out in the Sui Generis-a New York Law Blog, at issue in Martinez v. County of Monroe was whether Monroe Community College properly denied health care benefits to the female partner of a female student. The MCC student had previously married her partner in Canada.
The New York Legal Update fills in some more of the relevant facts:
On July 5, 2004, the plaintiff Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of the defendant Monroe Community College, in Rochester. On the basis of that marriage, Ms. Martinez applied to the college two days later on July 7, 2004 for spousal health care benefits for Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College's Director of Human Resources denied the plaintiff's application for spousal health care benefits.
The plaintiff then commenced an action seeking, among other things, a declaration that the College's failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law § 296,
In deciding the couple’s rights to insurance coverage, the Court had to decide whether the parties were legally married. The Court then provided a review of the test of recognizing the validity of marriages obtained outside of New York:
For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the "positive law" of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of "natural law" . . .Thus, if a marriage is valid in the place where it was entered, "it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute"
The Court then pointed out that by applying the "marriage-recognition" rule, New York has recognized a marriages which would have not been valid if solemnized in New York.
We conclude that plaintiff's marriage does not fall within either of the two exceptions to the marriage-recognition rA]bsentA]bsent any New York statute expressing clearly the Legislature's intent to regulate within this State marriages domiciliariesdomiciliariesso Van Voorhis, 86 NY at 37). The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exceptiVoorhishe general rule of foreign marriage recognition is not applicable in this case. . .
The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages "offensive to the public sense of morality to a degree regarded generally with abhorrence" (May, 305 NY at 493), and that cannot be said here. . . . .
The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff's marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.
The Court concluded that the plaintiff’s marriage to Golden, which was valid in the Province of Ontario, Canada, would be entitled to recognition in New York. The Court concluded that absent express legislation to the contrary, prohibiting the recognition of same-sex marriages, such marriages would be entitled to recognition in New York.
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