Legal Alerts-June 1999
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Protecting Families: Standards for Child Custody in Same-sex Relationships

In an important development affecting the fate of our families and our communities nationwide, the Boston-based Gay & Lesbian Advocates and Defenders have assembled a valuable legal policy document. Issued in April of this year, the Standards for Child Custody in Same-sex Relationships offers a detailed set of principles and policies which provide guidance to lawyers and community members attempting to resolve child custody conflicts involving same-sex couples.

Designed as a practical problem-solving tool as well as a statement of principles, the Standards address all of the key questions and conflicts which arise in same-sex dissolutions where children are involved. The basic principles behind the Standards are as follows: be honest about the existing relationships, focus on the needs of the children, attempt to reach a voluntary resolution so as to avoid litigation, and avoid raising homophobic legal barriers such as the absence of a marriage or the lack of a second-parent adoption.

The Standards encourage couples to recognize the realities of their relationships and enter into written agreements whenever possible. They also encourage couples to follow through with second parent adoption procedures wherever available. Then, in an important statement of principles for our community, the Standards assert that even in the absence of legally recognized parentage, the child's best interests should guide the dissolution process. They encourage this policy even where one partner is lacking any legal documents and even where there's hasn't been a second-parent adoption. The Standards also encourage attorneys to refrain from raising homophobic arguments in child-custody disputes and to not rely on legal doctrines which unduly favor the biological parent.

The Standards are clearly written and easily accessible to a non-attorney audience. They have been created with the collaboration of Lambda Legal Defense, National Center for Lesbian Rights and the ACLU's Lesbian & Gay Rights Project, and many lesbian and gay organizations are endorsing the Standards.

The full text of the Standards can be found at GLAD's website:
http://www.glad.org

In other adoption-related news, the New Hampshire Legislature recently repealed a 1987 state law prohibiting gays and lesbians from adopting children or serving as foster parents. This leaves Florida as the only state where adoption by gays or lesbians is expressly banned statewide.

Important New Tax Decision Affecting Same-sex Couples

One of the most difficult issues facing same-sex couples in a dissolution is how to handle the tax aspects of the separation. Local property tax and transfer tax rules usually exempt heterosexual divorcing couples, but not same-sex couples. A few jurisdictions (especially in California) have created some exemptions from local transfer taxes for dissolutions involved registered domestic partners, but these exemptions are rare. Federal and state income tax rules often exempt straight couples from many of the transfers which occur in a divorce, but not gay couples.

In a recent US Tax Court case (Reynolds v. Commissioner, March 4, 1999, TCM 1999-62), the Tax Court ruled that a settlement payment made by one unmarried (straight) partner to his ex-girlfriend would not be treated as taxable income to the girlfriend. The Court ruled that since the payment was a settlement of her property claims and the basis of the property she was claiming was no less than the amount she received in settlement, there was no taxable gain. In addition, any other payments which were made out of love and affection would be considered gifts, not as payments for services or taxable income.

Payments made in connection with the sale of a partial interest in a residential property held by both partners is tax exempt, so long as the conditions for exempting residential sales are met. However, transfers of a partial interest in non-residential property or where one partner was never added to the legal title may not be exempt under those provisions. In those situations, the Reynolds holding offers another method of avoiding taxation of settlement payments.

Each tax case is specific to its facts and the law in this area is fairly complicated. For this reason, everyone should obtain advice from a qualified tax expert before finalizing any settlement agreement. The Reynolds holding, however, gives us an additional argument for keeping these settlement payments tax-free, and for some couples this may be a very valuable approach.

Massachusetts Court Validates Cohabitation Agreement

In an important breakthrough for those in Massachusetts, the Supreme Judicial Court of that state has ruled (Wilcox v. Trautz, 427 Mass. 326, 1998) that a cohabitation agreement would be enforceable, just like any other contract. The lower Probate Court had ruled that the agreement was unenforceable "as a matter of public policy," even though the agreement was in writing.

The appellate court reversed the Probate Court's decision, and ruled that since Massachusetts doesn't honor common law marriages, cohabitation agreements are the only means available to unmarried couples to clarify their property rights. And, even though this case involved a heterosexual unmarried couple, the language in the decision did not rely on the gender of either partner and nothing in the opinion distinguished gay couples from straight couples. It is hoped that in the event a future court considers a claim by a gay partner, this case will support the enforceability of a cohabitation agreement.

Take note: in this case there the parties had a written agreement which the court could use in reaching its decision. It is not so clear that the same decision would have been reached in the parties only had an oral agreement.

The French Lead the Way on Domestic Partnership

France's Assembly has approved a landmark set of domestic partnership rules, and if enacted into law, these rules will dramatically improve the conditions of unmarried couples -- straight and gay -- within France. While short of granting the right to marry to same-sex couples, the French rules offers real value to gay and lesbian couples.

Most interestingly, the French rules integrate property regulations with insurance and benefits rules, a linkage that has been lacking from most local or statewide domestic partnership programs in the United States.

As currently proposed, the French law will provide the following benefits:

  1. The partners are responsible for each other's financial needs, subject to any specific written agreement entered into by the partners.
  2. Anything acquired by the parties after the domestic partnership is registered is presumed jointly owned, unless there's a written agreement to the contrary.
  3. The partners are taxed as a couple after the third year together.
  4. Tax laws for inheritance and social security are modified to assist domestic partners, though to a lesser degree than for married couples.
  5. A break-up is justification for obtaining housing rights for the departing partner.
  6. Partners can demand concurrent vacation schedules from their employers (now here's a great concept!).
  7. Upon death or dissolution, joint assets are distributed as for married couples.

Unfortunately, the French Senate recently voted againist these proposed new laws. It is not known at this time whether or not they will be resubmitted later this year or next year, but the momentum is building for some kind of reform in this area.

For further information on the French laws (for those who can read French, that is!), check out Yahoo's French news site, which has an up-to-date compilation of articles on the campaign:
http://www.yahoo.fr/actualite/societe/pacs.html

For those wanting to do further research in these and other areas of concern, check out these valuable legal resources on the internet:

http://www.NCLRights.org,
This sites features current news and articles compiled by the National Center for Lesbian Rights

http://www.qrd.org/qrd/www/usa/legal/lgln/
This site offers the monthly Lesbian/Gay Law Notes, a newsletter published by the New York lesbian/gay bar association:

http://www.qrd.org/qrd/www/legal/
The Queer Resources Directory is an excellent site, with links to a wide variety of political, social and legal groups.

http://www.buddybuddy.com
This is the site of the Partners Task Force, a wonderful Seattle-based group which is working to expand support for same-sex couples.

http://metalab.unc.edu/gaylaw/
This site offers an on-line academic publication, Sexual Orientation and the Law Journal, with articles on legal issues faced by lesbians and gay men.

http://www.labyrinth.net.au/~dba/
This site contains a wealth of resources for couples including essays, access to decisions and statutes worldwide, and directories of attorneys.


Legal Disclaimer

General information provided at this site should not be treated as legal advice applicable in your particular situation. Every situation presents its own facts and circumstances, and the law may be very different depending upon where you live. By accessing this site, you are acknowledging that Frederick Hertz is not agreeing to act for you in any capacity nor providing you with any legal advice, and that you are not a client of Frederick Hertz. If you reside in California and wish to retain the services of Frederick Hertz, you may contact him at samesexlaw@aol.com and make an appointment to meet with him.