Marital planning post Perry, Windsor

  • by Charles Spiegel
  • Wednesday July 10, 2013
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Charles Spiegel(Photo: Courtesy Charles Spiegel)<br><br><br><br><br><br><br>
Charles Spiegel(Photo: Courtesy Charles Spiegel)






The Supreme Court's marriage equality decision in Hollingsworth v. Perry means that same-gender couples in California can choose to marry, or not. The knowledge that marriage equality for same-gender couples in California is here to stay means that we finally have time to decide whether to marry, without losing a perhaps fleeting "chance."

The companion United States v. Windsor decision provides very tangible federal benefits to same-gender married couples (but importantly not domestic partners), and as such, powerful new incentive to get married. It means that we now know for the first time that our marriages are and will be fully enforceable in California and for all federal purposes. The U.S. Supreme Court settled all that two weeks ago.

We as a community and as individuals feel rightfully proud of what we achieved in making our case that the gender of the two people in adult committed couples is irrelevant for access to the rights and responsibilities accorded married couples. Stopping governmental discrimination against, and providing equal rights and responsibilities to, same-gender couples in our lifetimes is a crucial ongoing fight we all won, when we each come out and when we help fund the fight.

In order to make that decision to marry, register as a domestic partner, or not, and how, I encourage couples to learn more about what California marriage rights and responsibilities are. Marriage licenses are unusual in that they are one of the few, if any, state licenses you can get without studying or passing a test. And there is no booklet that lists what those rights and responsibilities are. If we approached driving the same way, what would the rate of state driver license suspensions be? So what is there for a couple of fellas or gals to do?

It's easy to think of the question as deciding whether to write a prenuptial agreement but that is the wrong question. A prenuptial agreement is not the goal, instead the learning and pre-planning is. Marriages end in two ways " death or divorce " and premarital planning helps for both " as well as planning on the practicalities of living together. Non-divorce options controlled by your prenuptial agreement can address questions such as: While married, will you each have any separate money, and if so how and how much? At death, how much of your estate do you want your own will to control, versus having it belong to your spouse and his/her will?

Here are a few ways to find out about California marital rights and responsibilities:

Visit the websites of the legal groups who fought so hard for these victories " http://www.lambdalegal.org, http://www.nclrights.org, the American Civil Liberties Union, and others. There are excellent evolving fact sheets on the sites, particularly on national issues such as federal benefits, as well as California issues.

While there, make a donation to fund the important work still needed " more than half the country lives in states where marriage is not available for same-gender couples. And not all states will respect our legal California marriages as if made by a heterosexual couple. To paraphrase the Reverend Dr. Martin Luther King Jr., we can see but are not yet in any "promised land."

Nolo Press, the Bay Area-based legal education publisher, has great national and California resources at http://www.nolo.com. Fred Hertz and Emily Doskow have a particularly good book, Making It Legal , with some diagnostic tools to help you sort out the pluses, minuses and "appropriateness" of marriage in diverse situations, as well as general ways to approach these choices.

Attorney-mediators Dylan Miles, Heba Nimr, and I are presenting Marrying and Registering with Heart and Smarts, a low-cost workshop at the LGBT Community Center on Thursday, July 25 from 6 to 8 pm. Bay Area Lawyers for Individual Freedom is co-sponsoring and has information on its website, http://www.balif.org/events.

To best consider your specific situation, you may want to consult a family law professional. There are over 50 of us lawyers listed as practicing family law on the BALIF online directory (in an "Advanced Search") even before you sort for geography. See http://www.balif.org/directory.

With a few exceptions around rights and responsibilities to children and taxes, after doing this research and consulting a legal professional, any marrying couple can change rights and responsibilities to one another " most easily if done before marriage or registration in a premarital agreement. If you don't learn the law and don't write your own premarital agreement, then the agreement you live under is the one that the state of California provides for all couples. This family code was written and decided by judges largely for straight couples " who, as just one example, might have children by accident, something few, if any, same-gender couples face.

Why do so few couples do this investigation and planning? Is there a way to think of it other than planning for divorce? As previously noted, it is also planning on how you want to live together and what you want to happen at your death. Paradoxically, premarital planning actually can help couples decrease the chance of divorce by having these often-difficult conversations in advance. Those who have thought about their rights and responsibilities, and perhaps taken the additional step of writing their own agreements to govern such issues as separate and community property, allocation of income or debt, or alimony, may be less likely to split, and can invariably divorce more simply and with less surprise, if not less anger.

Statistics are strange things " people play the lottery for the momentary feeling they might be the one person in three million who wins. Yet although 1 in 2 marriages end in divorce rather than death, each couple thinks their marriage will not end by divorce. Is it too painful to consider your divorce possibility " and own it by thinking a little about your own what-ifs?

In mediation, the two biggest surprises of divorcing California same-gender couples are the spouse's interest in the other's earned retirement accounts (community property); and spousal support (alimony) payable after the relationship ends. Among the biggest surprises for gay and straight couples alike is that "fault" has almost no meaning for California divorce. (i.e., yes she can cheat on you, and get alimony after your marriage or domestic partnership ends.)

The amazing developments of the last two weeks do not mean that all same-gender couples should get married, because we are fighting for the right to equally determine whether or not to marry. For some it will be right, for others not. For those LGBT couples who do marry, maybe we as a community can redefine marriage in another way " entering into marriages or state registered domestic partnerships with clearer knowledge, expectations and perhaps written legal agreements " so that our relationships, whether married or not, and our divorces, can be "better."

 

Charles Spiegel is an attorney mediator working with gay and straight couples from his Noe Valley office. For more information, visit http://www.charlesspiegellaw.com.