DuBois Cary Law Group celebrates the Supreme Court’s ruling on DOMA. Congratulations everyone!
"DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." – Justice Kennedy
Gay & Lesbian Break-Ups
Dissolution of Same-Sex Relationships
My partner and I have been living together for years. We own a home together, but our salaries are miles apart. We never got around to getting married or registering as domestic partners. Now that same-sex marriage is legal in Washington, how do we split up our assets?
It’s complicated. Washington State does recognize what is called a “committed intimate relationship” for both opposite-sex and same-sex couples. There are several legal factors required to establish a committed intimate relationship and if you can prove these factors, then there are several rights and obligations that may apply. These cases are tricky because you are forced to share and ultimately prove that the intimate details of your relationship amounted to one that is recognized by law. It is important to note that even if you can show that your relationship rises to the level of a committed intimate relationship, you still will not be entitled to spousal maintenance (i.e. alimony) or reimbursement of your attorneys’ fees from the other party.
Couples who live together in Washington are often surprised to find out that they may have to divide their property even if they did not register as domestic partners. The law of committed intimate relationships (formerly called meretricious relationships) provides that both straight couples and gay and lesbian couples who have cohabitated in a "marriage-like" union may be treated similarly to married couples under the law.
In a committed intimate relationship, the court may divide property that is "community-like," but it can not award spousal support (alimony) or require one party to pay the other party's attorney fees. This is one of the big differences between registered domestic partners and unmarried couples in committed intimate relationships. In RDPs, the court can award maintenance and attorney's fees. "Community-like" property that may be up for division is property that was accumulated during the relationship, such as homes, retirement, savings and personal belongings.
But not all co-habitating partners are entitled to a share of their partner's stuff. Before you agree to give your partner half of your assets, you would be well advised to consult with a lawyer who has significant experience in this area of the law. She or he will be able to walk you through the legal factors and see how they apply to your particular case.
My partner and I are happy. We have been living together for years. We are registered domestic partners. Now that Referendum 74 passed and same-sex marriage is legal in Washington, do we need to go get married to preserve our legal status?
You don’t. Your Registered Domestic Partnership will automatically convert into a civil marriage after June 30, 2014. If you want to be married sooner, then you can go ahead and get married now. The date of your marriage will be the earlier date (when you became Registered Domestic Partners), not the new date. It’s important to note that even though we are fortunate to have marriage equality in Washington, the rest of our great nation is not at the forefront of this movement. The recent United States Supreme Court Windsor decision is a ground-breaking milestone in the civil rights movement, but it’s important to keep in mind that the case does not strike down Section 2 of the Defense of Marriage Act (DOMA). Section 2 effectively leaves the determination of marriage up to each state. And, no state is required to recognize a same-sex marriage that occurred under the laws of another state. Therefore, we strongly recommend that all same-sex couples update their estate plan to avoid problems in hospitals, airports, and schools in other jurisdictions. For more information about the effects of the passage of Referendum 74, check out our radio show on the subject here. DuBois Cary Law Group offers estate planning for same-sex couples.
My partner and I are Registered Domestic Partners. We did it in solidarity and, honestly, somewhat on a whim. I make significantly more money than my partner. Since we haven’t taken the step to marry, how difficult is this going to be to untangle? And, if we break up, am I going to have to pay spousal maintenance?
Well, in Washington, disentangling your relationship will likely be as challenging as a divorce. Registered Domestic Partners are treated as though they are married under Washington law. In December 2009, the state of Washington's Registered Domestic Partnership Expansion Bill (a.k.a. the "everything but marriage act") became law. Registered Domestic Partners (RDPs) are now afforded most of the rights and obligations of married couples. However, registered domestic partners are only extended rights under Washington laws that do not conflict with federal laws. So, yes, you may have to pay maintenance, but unlike opposite-sex married couples, you will probably not be able to deduct the maintenance on your taxes. This is only one of the thorny legal issues that you must be aware of if you are a divorcing RDP. So, if you are looking to dissolve an RDP, it’s best to seek legal advice.
So, How Do We Split Up Our Stuff if We Are RDPs?
RDP divorces are treated pretty much the same as opposite sex marriages. There are, however, some unanswered questions since this area of the law is so new. For example, it is unclear how the length of the relationship will be determined by the courts when figuring out a maintenance obligation, or when dividing property.
As in an opposite-sex divorce, the court will have to make a determination as to the character of the property, whether community or separate; and divide it in a fair and equitable manner. There may be some arguments available about what is fair and equitable in each specific case because of the newness of this law.
One thing is for sure, no one knows exactly how the courts are going to interpret the Domestic Partnership statute when domestic partners enter the divorce arena. It is best find a lawyer who is keeping on top of the changes in this complex and ever-changing area of the law.
At DuBois Cary Law Group, a significant part of our practice is made up of same sex cases. We are carefully following the evolution of the law as it relates to same sex couples and would be happy to assist you in ending your domestic partnership.
Same Sex Child Custody Issues
As a gay or lesbian couple, will the courts treat our family differently?
When a relationship between LGBT parents ends, the parties are entitled to establish a parenting plan and child support order, which are enforceable in court. The issue may become more complex with same-sex couples because often only one parent is the biological or adoptive parent.
Washington recognizes a legal theory called “de facto parent”. If de-facto parentage is established according to specific criteria set forth in applicable case law, a parent who has not adopted a child may be granted full parental rights under the law. These cases are often a legal and factual quagmire. You would be well advised to find a lawyer who is very familiar with handling this type of case.
Once it is established that each parent has full parental rights, same-sex parents are bound by the same child custody laws as opposite-sex parents. Please check out the parenting section on our web site.