Author Archives: sjordan

Health Care Power of Attorney and Living Wills Are Important

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For those living in Pennsylvania, the Allegheny County Bar Association (ACBA) has launched a webpage to make the public aware that they can now do their own Health Care Power of Attorney and Living Wills. These forms have been endorsed by the ACBA and the Allegheny County Medical Society. This is especially important for members of the LGBT community, as if you do not have these documents, under Pa. law, your partner is last on the list under the Pa. statutes to make health care decisions for you.

This does not eliminate the need to do estate planning, but when you do your estate planning, this means the attorney’s work on this portion of the estate planning becomes more efficient.

http://www.acba.org/Public/Legal-information/Living-will-Healthcare.asp

What We Learned from the Proposition 8 Oral Arguments

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By Kate Paine, Esq.

Last week, the Supreme Court of the United States heard argument in two cases involving same-sex marriage. This post will discuss the most important take-aways from the first of those two cases: that involving a challenge to the constitutionality of California’s constitutional amendment declaring that only marriages between one man and one woman are valid and recognized in California (often referred to as “Prop 8″). 

First, it is important to understand that, although the Supreme Court could determine that all laws refusing to recognize same-sex marriages as valid are unlawful (just as it may, sadly, decide that such laws are not prohibited by the Constitution), there is also the possibility that the Court’s decision will not affect any, or many, states other than California.  To comprehend why, it is essential to understand how the Prop 8 case arrived in the Supreme Court. 

Originally, the defenders of Prop 8 lost at the trial Court level, when a federal Judge in California determined that Prop 8 violates a fundamental right to marry and constitutes unlawful discrimination. The case was then appealed to the Ninth Circuit Court of Appeals.  Although that court agreed Prop 8 is unconstitutional, it did so on much narrower grounds than the trial court, finding Prop 8 unconstitutional because it stripped the right to marry from one group only: same-sex couples.  Because no other state in this country has first allowed same-sex couples to marry, and then stripped them of that right, if the Supreme Court agrees with the Ninth Circuit, then its decision will likely affect only California—a victory, but a small one.

There is also the possibility that the Court could reach a middle ground and adopt what commentators call the “nine-state solution.”  Under this approach, the Court would find that states like California which, through civil unions or domestic partnerships, already give same-sex couples all of the rights of married couples, cannot withhold from those couples the actual label of “marriage.”  This would lead to the legalization of same-sex marriage in California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island—a bigger victory.

Of course, the Supreme Court could also agree with the federal trial judge and decide that laws refusing to recognize same-sex marriages violate the Constitution—the biggest victory of all.  The Court would base this decision on one of two grounds (or on both grounds): 1) it could decide that marriage is a fundamental right for everyone, whether between opposite-sex couples or same-sex couples; or 2) it could decide that laws that prohibit same-sex couples from marrying discriminate unlawfully. 

Based on Wednesday’s oral arguments, at which some Justices described the institution of same-sex marriage as “uncharted waters,” newer than cell-phones and the internet, it is unlikely that at least five of the nine Justices will decide that the fundamental right to marry includes same-sex couples.  The Justices also discussed their concerns over the unstudied effects of same-sex parenting on children and of same-sex marriage on society, generally.  Importantly, however, Justice Anthony Kennedy (who many believe will be the Judge to swing the vote to one side or the other) did emphasize his internal conflict, caused by the 40,000 children of same-sex couples in California, who want their same-sex parents to marry, and who are clearly faring well.  

It is more likely that the Court will find that the law unconstitutionally discriminates against same-sex couples.  You’ll remember from my previous posts about DOMA that a government must have one or more legitimate reasons for enacting a law that discriminates against a particular group of people.  Yet, during oral arguments, the lawyer defending Prop 8 had trouble articulating any such reasons, other than to allow more time for studies to emerge regarding the “real world consequences” of same-sex marriage, and to encourage “natural” (i.e. mother-and-father) procreation.  Although some of the Justices appeared to agree with these points, others disagreed with viewing marriage as an institution whose primary purpose is to produce children, especially because many people, including those past child-bearing age, are permitted to marry.  Even more importantly, these Justices questioned the notion that a law that prohibits same-sex marriage will encourage those in opposite-sex marriages to procreate.

The main takeaways from the Prop 8 arguments, then, are that: 1) the Court may again legalize same-sex marriage in California, and may even require legalization of same-sex marriage in those states that give same-sex couples all of the same rights as married couples, but there is a good change it will not legalize same-sex marriage nationwide; and 2) the question of whether same-sex marriage should be legalized nationwide will likely come down to what the majority believes to be the best situation for children.  Hopefully, the Justices will realize that, what is best for children, is to have two parents devoted to loving and caring for the child.

Domestic Partner/Cohabitation Agreements: Separation

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by Maureen B. Cohon

This is final piece in a three-part overview of domestic partner/cohabitation agreements. Part one discussed financial and property matters, and part two covered family issues. The final installment below addresses how these agreements can smooth the process of separation.

Potential Separation
In the unfortunate event of a separation, a domestic partnership agreement can save the parties the time and expense of litigating their rights and obligations, particularly with respect to property. Clients who contact us after deciding to terminate their partnership most often find parting less stressful if there is a signed agreement that states the partners’ wishes.

Questions to Consider

  1. What would happen if the relationship was no longer working for you or your partner?If you have an agreement most of the issues, which could cause problems, would be covered.  Parting will still be painful, but the agreement will be determined by you before the separation. The agreement would have addressed:
    1. How the notice of termination is given to each other.
    2. The time limits for the purchase or sale of the home and the distribution of the equity if it is a joint ownership.
    3. Distribution of your joint accounts.
    4. Issues regarding children.
    5. Any other issues that you determine you want in the agreement.

 Remember: each couple is different, and the issues addressed here (and in parts one  and two) will not apply in every circumstance. Domestic partner/cohabitation agreements, like most family law matters, need to be tailored to the individuals it serves.

While agreements are not easy to talk about while you are happy with each other, it is better to talk now than at the end of a relationship. Of course, the best outcome would be to create and sign the agreement and then put in a safe place and never have to look at it again!

Marriage Equality List

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There is much confusion about which states have what types of same-sex relationship laws.  We’ve compiled the list below to make it a bit easier to understand.  We will continue to update the list as the laws change.

If you have questions about the laws or the impact that they may have on you or your partner,  please contact us or post a comment below.  We really appreciate your feedback!

Allow marriage:Marriage Equality List

  1. New York
  2. New Hampshire
  3. Vermont
  4. Connecticut
  5. Iowa
  6. Massachusetts
  7. Maryland
  8. Maine
  9. Washington
  10. Washington DC
  11. Delaware (effective July 1, 2013)
  12. Rhode Island (effective August 1, 2013)
  13. Minnesota (effective August 1, 2013)

Provide that same-sex couples can enter into a civil union:

  1. Hawaii
  2. Illinois
  3. New Jersey

Provide same-sex couples can enter into a domestic partnership:

  1. California
  2. Nevada
  3. Oregon
  4. Colorado (designated beneficiaries)
  5. Wisconsin (learn more)

Buchanan Nontraditional Couples Chair Maureen B. Cohon Discusses Practice with Pittsburgh’s Equal Magazine

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Maureen B. Cohon may not have foreseen the high level of interest she has received for the Nontraditional Families & Couples practice she started several years ago, but she jumped at the opportunity to help those seeking legal guidance.

“My clients were amazed, and dismayed, that they have to be proactive if they want their partners to be protected,” Cohon told Equal magazine in an interview published in January 2013.

“I realized that we need to help these couples who are underrepresented. They need to know they need legal help.”

Read the full article – “Laws of the Heart,” (Equal Magazine)

With that in mind, Cohon led the charge to create the Nontraditional Couples and Families Group, a multi-disciplinary practice that focuses specifically on these less represented relationships.

“In 2001, when this practice group began, we asked any lawyer from our firm who was interested to become a member of the new group, and we recenved an enormous turnout,” Cohon explained.

The group meets four to six times a year to review legal developments like the Defense of Marriage Act and Proposition 8.

There were “no letters to the editor,” Cohon said, noting the firm’s support of the practice. “We received a tremendous response from our clients and friends who began calling and wanting advice for their own children and friends.”

“Everyone is touched by this in one way or another.”

Cohon sees a positive future for the legal issues nontraditional couples currently face

“The time is right now. Younger people – there is no question in their minds that gay marriage is a good thing. No one wants to see one group treated lesser than another.”

Wisconsin’s Conundrum

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By Paul Madden, Esq.

Wisconsin is an enigma. On the one hand, Wisconsin bans same sex marriage by a broadly worded constitutional amendment, providing:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.  A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

Art. 13, § 13.  Neither will Wisconsin recognize same sex marriages from another state or country.  W.S.A. § 765.04(1). 

On the other hand, of all of the states that have bans on same-sex marriage and civil unions, Wisconsin appears to be the only one that then went on to enact legislation governing the relationship between domestic partners.  W.S.A. § 770.05.  Domestic partnerships in Wisconsin provide select rights and responsibilities both to state employees (not limited to same-sex couples) and to same-sex couples generally.  The legislation addresses more than 40 rights and responsibilities, including the ability to inherit a partner’s estate in the absence of a will, hospital visitation, and the ability to access family medical leave to care for a sick partner.  It does not provide for same-sex adoptions, the disposition of human remains or other unenumerated rights. 

The tension between the constitutional amendment and the domestic partnership legislation is currently at issue in the Wisconsin courts.  On July 5, 2012, the Wisconsin Court of Appeals certified an appeal to the Wisconsin Supreme Court “to determine whether Wisconsin’s domestic partnership legislation violates the Wisconsin Constitution’s marriage amendment.”  Appling v. Doyle, No. 2011AP1572, 2012 WL 2579687 (Wis. Ct. App. July 5, 2012).  The appeals court framed the specific question to be whether the legislation creates “a legal status substantially similar to that of marriage for unmarried individuals, as prohibited by the marriage amendment,” but decided not to refine the issue in its certification because the issue to be resolved in the Supreme Court is uncomplicated.  The Governor of Wisconsin has refused to defend the domestic partnership legislation in the courts.

Real Property Series – Part 3 & 4 of 4: Dissolution & Conclusion

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By B. Lafe Metz, Esq. & Tyler S. Dischinger, Esq.

This four part series addresses several broad issues encountered by nontraditional couples regarding the acquisition, ownership and transfer of real property. If you have not yet read part 1 or two, click here.  (See NOTE.)

  • In jurisdictions where nontraditional couples do not have the benefit of marriage statutes, they likewise do not have access to the corresponding divorce procedures. This makes for a more complicated and less predictable scenario should the two partners choose to part ways.
    Without a legal default to guide the way, it is important for the parties to be proactive by documenting their agreement about owning and maintaining the property, and keeping records of who has paid which expenses so each partner has evidence of his/her contribution to the jointly-owned property.
  • A formal joint tenancy or tenant in common agreement is often beneficial to establish a record of contributions, allocate responsibilities and benefits, and provide an agreed form of dispute resolution. While it is sometimes difficult for a couple to sit down and discuss business issues, especially early in a relationship, both partners and the relationship itself will ultimately benefit from clear communication and mutual understanding.
  • Ideally, each partner should be represented by independent counsel in the negotiation and execution of a joint tenancy or tenant in common agreement.

Conclusion

Nontraditional couples often own real property either as joint tenants with right of survivorship or as tenants in common. A discussion with counsel may help determine which approach is right for your family. Under either type of ownership, it is usually beneficial for the partners to enter into a written agreement addressing their respective ownership rights and obligations and providing mechanisms for future sales, leases, or mortgages of the property as well as dispute resolution procedures. If we may be helpful to your family in any way, please call Lafe Metz at 412-562-1044 or Tyler Dischinger at 412-562-1387.