March 17, 2011 | by Susan Silber
Legal protections for our families

I have always loved the Robert Frost line that “home is where they have to take you in.” In my 30 years of legal practice, I have seen enormous change in how we support one another and how we honor the families we create in the larger world.

When opponents of marriage equality argued in Annapolis once again that marriage between a man and a woman is uniquely entitled to the institution of marriage because only in this way can we have children, the arguments now seem not only archaic but ridiculous. Our community is bearing, adopting and raising children in a veritable baby boom.

The question is not whether the LGBTQ community is creating families (we are). The question is how legally to protect these family relationships, especially in times of stress and transition. The legal tools we employ vary enormously from state to state. This article should not substitute for legal consultation about your particular family. Here I will simply lay out key principles for you and your loved ones to consider.

When you decide to form a family, clarify your financial arrangements. Enter into a written contract that includes a dispute-resolution provision, e.g., collaborative process, mediation, that will keep you out of court.

If your jurisdiction permits marriage (D.C. only as of 3/2011) or recognizes out-of-state marriage (Maryland), seek advice regarding the legal consequences of marriage before you marry.

Pre-nuptial agreements can vary the legal terms of a marriage. If your jurisdiction recognizes domestic partnerships, understand the benefits and obligations. Whatever family structure you choose, plan for your death or incapacity:

  • Grant a power of attorney to a trusted person who can manage your financial affairs.
  • Execute an advance medical directive that establishes who will handle your health-related decisions.
  • Execute a will.

If you choose to bring children into your family, careful legal planning is essential to protect and promote the stability of your parent-child relationship.

Ensure that, if both partners will parent your children, each achieves the full status of a legal parent. This is best done by joint second parent/stepparent adoption in Maryland and D.C.  In Virginia, the best available option is a joint custody court order.

Each parent must have standby guardianship and a will that names a guardian to raise one’s child and a trust or guardianship to provide financially for the child’s needs.

Be aware of DOMA (Defense of Marriage Act).  DOMA has two disastrous effects on the legal recognition of our families: DOMA allows each state to decide whether to recognize same-sex marriages from another state. Thus, a married gay couple could pass in and out of recognition as they drive across country. If they had a car accident in Arkansas, they would not be allowed to sue for the wrongful death of their spouse.

DOMA defines marriage as only between a man and a woman for all federal legal purposes.  Thus, even if you marry in D.C., you will not have equal federal rights, for example, regarding federal taxes, Social Security, etc.  Fortunately, the Justice Department recently announced that it would not defend this aspect of DOMA in pending litigation.

It is just as important to legally support our families at the time of break-ups as at the time of formation. All too often, members of our community argue against LGBTQ family stability in the courts. Sometimes, biological parents selfishly seek to negate the bonds their co-parent has established with children they have jointly raised.

Commit to a resolution that is in your children’s best interest. Use a family therapist. The best way to divorce is collaboratively, with a collaboratively certified attorney and coach.

Be aware that civil unions, domestic partnerships and marriages may be difficult to dissolve.  For example, if you marry in Canada, you must be a resident of Canada for one year before you can seek a divorce. Seek legal advice before you enter a legal status. You have many more options at the front end when you are in love, than when you are breaking up.

We are privileged to live in times when our families have the opportunity to prosper. But we should judge our accomplishments as a community by how well we protect our weakest members and achieve equality and justice for all our diverse families.

4 Comments
  • My ex-husband and I were granted a same-sex divorce in Kings County Supreme Court last year. It was uncontested and I handled it myself (pro se). It took over a year, since it was based on the conversion of a one-year separation agreement. The law has since changed and you should be able to get a quicker no-fault same-sex divorce if both husbands agree on financial issues.

    This divorce dissolved my July 2000 Vermont Civil Union. As soon as it was final, my current husband and I went to Vermont where we entered into a full-fledged marriage, which is no available there.

  • This divorce dissolved my July 2000 Vermont Civil Union. As soon as it was final, my current husband and I went to Vermont where we entered into a full-fledged marriage, which is no available there.

    Sorry for the typo. Vermont no longer issues civil unions. Instead, it issues marriages without regard to the gender of the parties thereto.

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