Articles Posted in Same Sex Relationships

supreme-court-1224501.jpgWhen a divorce or separation case involves children, the parties must address additional considerations that will affect the family down the road. Issues such as legal and physical custody and visitation (or “time-share”) must be resolved, either by mutual agreement or an order of the court. California courts have the authority to issue various kinds of visitation orders in child custody cases. The underlying goal is to find a suitable arrangement that serves the best interests of the child under the circumstances. It is important to understand your family’s rights in a child custody and visitation proceeding. You are encouraged to contact an experienced San Diego family law attorney, who can sort through the legal requirements in order to protect your rights.

“Visitation” is usually part of a custody order and is commonly understood to be the plan for how parents will divide time with their children. Depending on the situation, visitation can take place according to a schedule, or it may be unscheduled (“open-ended”) but “reasonable.” In some cases, courts will order “supervised” visitation, or no visitation at all. In order to be able to enforce a custody and visitation arrangement, the parties must present the plan to a judge. Once the judge signs the document, it becomes a court order, enforceable by either party. If circumstances change, such as the children’s schedules, the location of the parties, or any other item affecting the arrangement, either party may file an application with the court to modify the existing custody and visitation order.
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1164099_couple_in_love_5.jpgA news article reported on a recent Texas district court’s order that may come as a surprise to many San Diego residents, as well as to people throughout the State of California. The judge enforced a “morality clause” in a divorced couple’s custody agreement that makes it illegal for the mom (who has physical custody of the children) to have anyone she is dating, or is intimate with – who is not related by blood or marriage – to stay at the home past 9:00 p.m. The mom and her lesbian partner had lived together for three years until this ruling. The court’s order demands that the mom’s partner move out of her home, effectively splitting the couple apart. Child custody arrangements are often complicated and fraught with high emotions and strong family ties. A local attorney can guide you through the process in a poised and effective manner, while protecting your rights under the local family code.

The ironic part of this court order is that the couple cannot even attempt to comply with the morality clause by getting married. The law in Texas prohibits same-sex marriage. The state’s ban goes further and affects estate planning, medical power of attorney and parental custody. The couple divorced back in 2011, but the case was reopened recently over a dispute concerning the custody of their children.

Here, the mom and her partner had been living together for three years before the judge rendered his clarification order, disrupting the lives of the two women and the children. According to the news article referenced above, the judge in this case has made known his conservative stance and advertises his lengthy affiliation with the Republican Party. The same article quotes a senior staff attorney for Lambda Legal’s Dallas office as saying, “morality clauses are rarely enforced, but can be used to target homosexual spouses.”

This is a troubling decision with significant ramifications for the children. Most custody arrangements are developed with the intention of preserving the best interests of the children. Here in California, either parent can have custody of the children, or they may share custody. In the end, the judge will render the final decision about custody and visitation but usually will approve an arrangement (also known as the “parenting plan”) that both parents agree to. Of course, if the parents cannot agree, the judge will make a decision at a court hearing. There are two types of child custody: 1) legal custody – the parent(s) who is responsible for making important decisions for the children, such as education, health care, and welfare; and 2) physical custody – the parent with whom the children live. The law in San Diego requires that judges must determine custody issues according to what is in the “best interest of the child.”

While divorcing spouses may differ on what is in their child’s best interests, an experienced, local family law attorney can help you understand how a California judge may view a custody request or an agreed-upon arrangement between spouses.
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1372512_pregnancy_close-up sxchu username kajrdj.jpgIn 2002, a woman who was born Tracy Lagondino reportedly underwent surgery to become a man. Around the same time, the transgender man also began male hormone therapy and had his upper body contoured into that of a man. Although Thomas Trace Beatie was legally declared a male, his female reproductive organs were allegedly left intact. Soon after, Beatie reportedly married and began a family. Not long after Beatie learned his wife, Nancy, was physically unable to become pregnant, he decided to carry the couple’s children. Beatie soon became a nationwide celebrity known as the “pregnant man.” Eventually, Beatie gave birth to three children. As occurs in about half of all United States marriages, 38-year-old Beatie and his wife of nine years are now asking a court to dissolve their marriage.

While Beatie and his estranged spouse attempt to work out the details associated with the end of their marriage, a Maricopa County, Arizona Superior Court judge, Douglas Gerlach, has reportedly called the couple’s legal union into question due to the fact that Beatie gave birth to their three children. In the State of Arizona, a court will not recognize a same-sex marriage, even if it was performed legally in another state.

Despite that Beatie’s birth certificate and driver’s license now state he is a man, Judge Gerlach has said Beatie is the biological mother of the couple’s children by any reasonable legal standard he can come up with. Because of his misgivings over the couple’s legal status, the judge even asked the Arizona Attorney General’s Office to weigh in on the matter. The Attorney General, however, reportedly declined to issue an opinion regarding the former couple’s marriage. Judge Gerlach is expected to make a determination regarding the couple’s marital status in February 2013. Still, the judge stated he will divide the former couple’s assets and determine child custody even if he refuses to dissolve their marriage.

As demonstrated by this case, same-sex marriage is a quickly evolving area of family law in both California and throughout the nation. If you are considering entering into a domestic partnership or same-sex marriage, you should speak with a committed attorney who can explain your rights and help you protect your interests.
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1381722_wedding_rings sxchu.jpgWhen couples end a relationship, they are rarely thinking about the tax consequences associated with their decision. Although traditional divorce is generally not taxable, ending a domestic partnership, civil union, or gay marriage may have unexpected and painful tax consequences. To make matters worse, Internal Revenue Service guidelines that affect same-sex unions can be vague and difficult to navigate. Additionally, tax laws and rules change often. To protect the financial interests of both parties, gay couples and others ending a domestic partnership should be careful to make informed financial decisions ahead of time.

To illustrate what some are calling the gay divorce tax, consider how a couple’s assets are normally divided when they divorce. Oftentimes, a work-related retirement account in one member of the couple’s name is split between the parties. While divorcing heterosexual couples in California may divide the funds in the account equally using a Qualified Domestic Relations Order, same-sex couples cannot. Instead, unless the account owner has reached 59 1/2, he or she would be required to take a taxable withdrawal from the retirement account in order to divide the asset. In California, that means the withdrawal would be subject to both federal and state income taxes as well as a 10 percent premature distribution penalty. Unfortunately, that is before considering any potential gift tax issues.

Music star Melissa Etheridge made headlines when she discussed the high cost of ending her domestic partnership with Tammy Lynn Michaels. According to Etheridge, she was required to shell out twice as much money to end her union as would have been required if she were married. Like their heterosexual counterparts, gay couples in California and across the nation should discuss the possibility of divorce prior to entering into a legal union of any kind. Due to the host of complex issues associated with ending a civil or other legal partnership, same-sex couples must educate themselves ahead of time to ensure they make smart financial decisions. If you are considering entering into or ending a same-sex union in California, you should contact an experienced family law attorney who can help you protect your financial interests.
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The legality of same-sex marriage is a hot political issue with no signs of cooling any time soon and San Diego County is no exception. Complex legal issues are developing on a daily basis, especially where health and finances are concerned and the San Diego Court’s look to the legitimacy of the marriage. San Diego Superior Court’s recognize marriages from all jurisdictions [including other countries as long as the formalities are observed] and also divorces from all jurisdictions [again including countries which are not the US with the mandatory formalities].

While it seems logical to project that same-sex marriages will eventually be subject to similar protections as traditional marriages, those protections may not yet be enforceable. For example, if you die without a will, your property will pass to a narrowly-defined group of “relatives.” In the eyes of the law, your partner may be no more than an ordinary “roommate.” It is also important to consider whether, in San Diego, a registered domestic partnership is on file with California per the mandatory regulations for domestic partnerships which are registered.

However, death is not the only situation that can form battle lines over your property. Ill health or aging can also trigger a family conflict. Even eccentric behavior can result in a relative questioning your competency and volunteering to manage your affairs. A registered domestic partnership valid in San Diego is the only alternative in California as of the preparation of this article since marriage between persons of the same sex are not now permitted.

If you are aging, or suffer a debilitating health condition, a concerned relative can obtain a court order, giving them control over both your health care decisions and your property. Some families have used this tactic to forcibly separate loving couples, claiming the significant other is a harmful influence. Once a court declares you legally incompetent, your opinion won’t matter. This is why it is important to consider all of the different advantages and disadvantages and consequences of your decisions.

The best way to prevent this is by planning ahead. By drafting a written contract naming your significant other as your health care representative and including a durable power of attorney, you can make your wishes known in advance and assure that your loved one will not be excluded from health and financial decisions. An estate plan can assist with insuring your wishes and desires are carried out after your passing however contests can be made in probate court.

Family intervention can be motivated by genuine concern or by greed. But failing to plan ahead can have devastating consequences when it’s too late.

You may believe that a registered domestic partnership agreement is an economical solution to these potential problems. However, a registered domestic partnership carries responsibilities as well as rights, and it’s always helpful to consult a lawyer, especially if the partnership is being terminated or either party has had multiple partnerships or has been married in the past to insure that the divorce is final and not a legal separation or that a divorce was not completed. There have been cases where spouses thought they were divorced and moved on with their lives only to find out years later that they were still married!
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