It’s nice to share a bit of good news. This article was a welcome sight amongst everything that has gone on in the recent past and the fear of reversing rights for the LGBT community as well as a possible attempt to undo the Supreme Court case permitting lawful marriage nationally between same sex couples. 

I think everybody recognizes Las Vegas as the wedding capital of the world, in that it has been not only a place that people can get married quickly, but is known for its exuberant nuptials and themed weddings.  People have streamed into Nevada from all over the world to get married or “hitched” since the 1930s.  Nevada can now say that it is one of the first states to officially protect same sex marriage in its constitution. 

For years legal marriages were banned for same sex couples.  Nevada had voted a ban on same sex marriage in 2002.  In 2015, the nation recognized same sex marriage by the Supreme Court case of Obergefell v Hodges.  However, there is a looming question whether the two conservative Justices (Alito and Thomas), who have spoken out against this decision, might try to undo and seek to reverse that decision and leave it totally up to the states whether or not to discriminate against same sex couples who wish to marry. 

It is also heartening that the vote in Nevada was passed by a 60% margin.  Getting it to be part of a state’s constitution is not easy.  In fact, in Nevada, it had to go through the state legislature twice, in 2017 and 2019 before it was able to be put on the ballot.  Nevada has long been a swing state with the electorate ranging from cowboys to casino workers and people transplanted from many other states.  It is apparent that Nevada has now been trending more democratic in recent years and the fact that it was called for Biden and Harris shows it is presently a more democratic state. 

At present about 30 states still have same sex marriage bans on the books, though they have been blocked by the courts.  Notwithstanding the Supreme Court decision, these bans still exist, although they cannot be enforced.  Only a few states have actually repealed their bans and some efforts, like in Indiana and Florida, to repeal a ban have failed. 

Another note of interest, Nevada is also a place that people have flocked to undo their marriage in an easier fashion than their own states:  by setting up short residency they are able to get a non-contested divorce.  This has changed in many states, but most states, like New York, have a requirement of residency prior to being able to file for a divorce. 

A federal court in Georgia recently ordered the Trump Administration to recognize the U.S. citizenship since birth of Simone Mize-Gregg, the two-year-old daughter of a married same-sex couple, and to issue her a U.S. passport. The U.S. State Department had refused to recognize Simone as a U.S. citizen, even though both of her parents, Derek Mize and Jonathan Gregg, are U.S. citizens and children born abroad to heterosexual married U.S. citizens are automatically considered U.S. citizens themselves.

Click here to read more about this landmark victory!

Selected excerpt(s), photo and linked article courtesy of Lambda Legal.

Legalized same sex marriage has only been available across the United States since June 26, 2015, as a result of the Supreme Court 5-4 decision in Obergefell v Hodges. This decision granted the LGBTQ Community the universal legal right to marry in any state in the United States. Prior to that, only some states permitted same sex marriage while others merely gave the right to a Civil Union.  Many people do not understand that a civil union does NOT convey the same rights as marriage. However, the majority of states still did not have laws in place to protect LGBTQ couples and their families. 

Many people believe that by giving the legal right to marry to the LGBTQ Community, it automatically conveys equal rights and in doing so has resolved all issues faced by these families. Unfortunately, that is far from true. Many of the concerns continue to exist, notwithstanding the legal right to marry. That is not to say that there are not many beneficial rights granted as a result of a legalized marriage, but there are some kinks.

One of the more significant financial rights gained by legal marriage is the right to your spouse’s social security benefits. Notwithstanding all the benefits afforded, some people still choose not to get married because of other tax consequences or for estate planning objectives.  Of course, it remains entirely an individual’s choice, but at least the right to marriage is available to everyone. 

So, what problems still exist? Well, there unfortunately are too many to cover by this brief article. But what should be made abundantly clear is that the Court System is the last place an LGBTQ couple or family should be, particularly in the event of a divorce. You would think that application of divorce laws would be universally applied and the effect for a couple whether same sex or heterosexual would be similar. Unfortunately, not having had the legal right to marry for so long puts same sex couples at a distinct disadvantage. In New York State, when you commence a divorce action, the date of filing sets the date of valuation for most marital assets. Strictly speaking, the duration of the marriage is considered to be from the date of (legal) marriage to the date of commencement of a divorce action. For many LGBTQ couples this presents a significant problem since many have been together long before the right to marriage even existed.

When considering “marital assets” during a divorce, the Court must adhere to this strict guideline. This creates different dynamics for the LGBTQ Community whose couples have been partners in life for many years prior to being able to legally marry. A couple’s specific planning, whether it be for financial security for their future retirement; how they run their daily and monthly budgets and expenses; or how they choose to make purchases of personal and real property may vary. However, from the Court’s perspective, upon a filing for divorce, the Court will NOT look back at the family’s financial history or planning objectives. The Courts are only going to look at the hard numbers and names or title of ownership of assets as of the legal date of marriage. The Court will only be concerned with what existed as of the legal date of the marriage, the date of filing for divorce and what happened in between, even if a significantly shorter time than the couple chose to be committed to each other and share their lives and resources. Therefore, the concept and application of separate versus marital property takes on a different meaning and impact for an LGBTQ couple who finds themselves in court.

Normally separate property is property that existed and was owned by one person prior to a marriage. That could be, for example, a down payment on a house that ends up jointly owned or an inheritance (whether before or during the marriage) that is maintained as separate property. However, for couples that have been together in some cases for several decades or more, prior to being able to marry, they may have commingled what was technically separate property; or at the time they were able to legally marry what was separate is now joint. Therefore, there will be no accounting for what had been separate property as there would be for a heterosexual couple, i.e., the purchase of a house that is now in joint name, savings or money market or IRAs or retirement assets that are in one person’s name alone, since they were not married at the time of its accumulation. Technically, the Court will look at those assets only from the date of the marriage and only consider the marital portion of those assets to be from the date of the marriage to the date of the filing.

As an example, if a couple is in a 36-year committed relationship, but was only able to marry six (6) years ago, the Court will not consider the 30 years prior to the date of marriage or the growth or development of their retirement assets, even if they were part of a financial plan made by the couple for “their” future life and retirement. Further if a couple contributed resources to one another’s retirement assets according to a plan they made for their mutual benefit for the future, that will NOT be considered by the Court. Likewise, accrual or growth of retirement accounts before the date of marriage WILL NOT be considered marital property.

This may seem extraordinarily harsh, and I believe it is. However, the likelihood of the Court’s treatment in such instances was affirmed directly by several NY Supreme Court judges at a recent Mediation Symposium. The judges were asked directly whether they would look at the totality of an LGBTQ relationship and how they would address a lesbian or gay couple that had been together for many years before they were permitted to marry; the judges’ indicated they would be required to adhere strictly by the law. Therefore, the Courts are only permitted to look at the time from the date of the marriage to the date of commencement for divorce for the respective valuations of assets, the ownership of assets, and separate versus marital status of these assets, but not what the parties may have intended to be for their joint benefit.

Notwithstanding there being some progressive Judges on the panel, it was clear that the LGBTQ Community is truly at risk, when we put our relationships in the hands of the Court. I know that may be true for any couple who finds themselves in the midst of a litigated case, however it is especially dangerous and significantly impactful for an LGBTQ Couple and their family.

So, what is the alternative? Well, one could try to avoid divorce all together, but when that is inevitable, you can control your and your spouse’s destiny by choosing an alternative known as the Collaborative Divorce Process. In this forum your long-term relationship and financial planning can be recognized and contemplated in the settlement agreement. Further a team of professionals are available to help secure your family’s future in a manner you see fit and specific to your family dynamic. These professionals help find creative solutions. Together with a team the LGBTQ Community can divorce confidentially and with dignity. The benefits or alternative methods/processes, of Collaborate Divorce and Mediation, will protect your family from the potential harm of the Courts.

For a free consultation about the Collaborative Divorce Process, contact any one of the professionals of the LICDP.

Written by Concetta G. Spirio, Esq.
Photo courtesy of LICDP

To piggy back off of last week's post, NY now has its own hot profile case on the LGBTQ adoption issue.

A Syracuse Christian adoption agency says it doesn't take gay or unmarried couples as adoptive parents because it's not "in the best interests of children." New York has said New Hope Family Services will face closure if it doesn't comply with the state's anti-discrimination law.

New York in 2013 issued new regulations to adoption agencies, prohibiting them from discriminating against applicants who sought their services. The anti-discrimination rules covered everything from race to religion, sexual orientation to marital status. In the fall of 2018, after New York’s anti-discrimination regulations had been on the books for a few years, New York’s Office of Child and Family Services came to Syracuse for a routine inspection of New Hope. Thereafter OCFS told New Hope it would have to comply with state regulations. It would have to begin placing children with same-sex and unmarried couples. New Hope refused on religious grounds and OCFS made it clear in subsequent emails and letters it was delivering an ultimatum: Change the policy of not accepting certain couples, or shut down. New Hope filed suit and its case is now on appeal. New York says New Hope isn’t forced to do anything. The state insists that New Hope can always stop participating in public adoptions. But if it wants to continue this work, it simply must cooperate and follow the state’s rules.  Here, the law is concerned not only with New Hope’s religious freedom and discrimination against prospective adoptive parents -- but adoption is a heavily regulated process, in which a child’s rights and future is also at stake.

The New York attorney general, defending the state, also argues the case is different because adoption is conduct, not speech.

Selected excerpt(s), photo and linked article courtesy of Julie McMahon of Syracuse.com

Same sex marriage became legal based upon two Supreme Court decisions that determined that DOMA (The Defensive of Marriage Act) was unconstitutional and thereby ultimately determined the rights of same sex couples to marry and recognized said right throughout the 50 states (you can read more about this on my blog posting last week).

The law known as DOMA still exists but was overwritten by the Supreme Court decisions. However, with the most recent Supreme Court decision overturning the landmark abortion ruling of Roe v Wade, it seems clear from Justice Clarence Thomas’ concurring opinion that the rules of marriage equality and LGBTQI Rights as well as contraception rights could be at risk. 

This has spurred democrats to act. Last week the House passed a bill to codify Roe and also considered legislation this week to codify access to contraception, both of which are now in jeopardy based on the overturning of Roe. A bipartisan group of law makers have introduced the Respect for Marriage Act, which will repeal DOMA and require federal recognition for same sex and interracial marriages. This would also require all states to recognize marriages that are valid in the states where they were preformed, regardless of a particular states stand on same sex marriage. This would in effect, preserve state and federal benefits for those marriages in the event the Supreme Court choses to open the door for state legislation prohibiting them. 

Of course it is a long way from introduction to actually getting a bill passed. This will need to go through a committee, then brought to the House floor for a vote and if passed there, then would go to the Senate.  Both the House Majority leader and the Senate Majority Whip, (both democrats). are looking to push this legislation forward and have gone as far to say that it is a top priority.  Although this is a bipartisan effort, whether enough GOP votes needed to bypass the filibuster will be gained is unknown.  At present, more than 20 GOP Senators have declined to stake a position.

Vote Update:  Bipartisan Respect for Marriage Act Passes 267-157, with 47 Republican Votes 

Although some may say DOMA was rendered impendent by the Supreme Court rulings, as we saw with Roe v Wade, that could easily be overturned by the current Supreme Court bench. 

For those looking to secure these rights, we cannot afford to wait and let these rights be overturned as they did with Roe v Wade.  It is vital to have actual federal legislation in place protecting these rights so that we are not at the whim of the current political climate. 

Selected excerpt(s) and linked article courtesy of Andrew Solender, Axios(dot)com
Royalty-free photo courtesy of Pixabay

Concetta Spirio.  A Compassionate Collaborative Divorce Attorney, Mediator & Peacemaker Providing The Highest Level of Legal Representation For Over 35 Years.

#Concetta #ConcettaSpirio #ConcettaLaw #SpirioLaw #Marriage #Divorce #RealEstate #Litigation #Wills #Trusts #Estates #Mediation #CollaborativeDivorce #LongIsland #Suffolk #Nassau #Islip #Sayville #LGBT #DOMA #RespectforMarriageAct

Just because it's July doesn't mean we have to stop celebrating June Pride month!

Going through a divorce outside the Court system is critical for the LGBTQ community not only for confidentiality reasons, but also for comprehensive consideration of the relationship, which the Courts are limited to accomplish.  The Long Island Collaborative Divorce Professionals are proud supporters of the LGBTQ community, and I am a proud member!  We are dedicated to helping all couples but are also highly experienced in helping LGBTQ families.  Anyone seeking more information about how we can help families in conflict, during divorce or separation, please reach out.

As we look at the end of last year and the end of a decade, this article really gives a good perspective and highlights many points with respect to the LGBTQ Community and the rights we have gained and lost over this past decade.  It is definitely a good read and highlights some of the significant things that have happened over this past decade.  It also gives us pause, to know that so many rights have been lost that took so long to obtain.  There is a lot of work ahead of us in the decade to come.

Selected excerpt(s), photo and linked article courtesy of Lisa Needham of Rewire News & Getty Images

Most people are unaware that discrimination in employment is not protected unless it comes under a clearly defined class protected by law.  Employment in New York as in most states, is “at will”.  Therefore you can be fired at any time for any reason.  Although these issues have recently been argued before the Supreme Court, no decision has been made as to whether the LGBTQ community will be protected.  As this article demonstrates, many people, more than 50%, are not out in their workplace for fear that they may lose their job. Many people also experience discrimination and intolerable treatment from co-workers.

Selected excerpt(s), linked article and/or photo courtesy by Julia Carpenter, CNN Business