| The Times they are A'changin'…
You may haven noticed that the laws which formerly prevented anyone
other than a man and a woman to have marital benefits has been changing
all across America. In some cases, the laws have been passed by legislatures.
In some cases, there have been changes by "fiat"-- actions
by mayors and clerks. The results of those actions are being ruled
on by courts, and much confusion lies ahead.
And here in California, there has been an enormous change in the
"same-sex partnership" laws passed by our busy legislature,
under our new governor, a former movie industry insider. (That is
to say, unlike many of his political colleagues, he's not a opposed
to such laws) The court cases and bold moves have made headlines.
but for whatever reason, these new laws have not.
These changes are too massive for anyone (me?) to fully absorb, so
the purpose of this article is to give everyone a "heads up"
and some resources to sort out what you need to know from what you
don't need to know.
Invisible But not Minimal
As of the first of this year (2004) there is a sweeping new law--
The "California Registered Domestic Partner Rights and Responsibilities
Act of 2003" many changes are planned to take effect as of 1-1-05.
In 2004, all "Registered Domestic Partners" (RDPs) are to
receive a letter notified by letter that the laws have the changed--
but the letter will not spell put not how these laws have changed!
And how many people will take the time to read it all? Not many.
I'm from the Government and I'm here to help…
Here is the "Official" web page with California
information: http://www.ss.ca.gov/dpregistry/California
Secretary of State --Domestic Partners Registry." "Welcome
to the Domestic Partners Registry!
If you are in a committed lesbian or gay relationship in California,
you can protect yourself and your partner by registering as Domestic
Partners. If you are in a committed opposite-sex relationship where
one partner is 62 years or older, you have the opportunity to register
as Domestic Partners. It is important to register if you want
your relationship to have legal standing. While registration isn’t
the same as marriage, it does secure many important rights and responsibilities.
Under current law, registration can protect your rights in
times of family crisis, protect your children, and give you access
to family benefits at work." (emphasis added)
But I had benefits!
But wait! Some of you thought you were covered already, right? You
have employers who give "domestic partnership benefits."
Will this change? Yes, Virginia-- it will. You will have to make a
choice. Either way, things will not resemble the "status quo
ante." (The way it was before.)
Also known as AB 205, this became law 1-1-04. Yes folks, that was
over 6 months ago at this writing, but you probably didn't hear a
word. And boy, does it affect you if you are one of the group of people
who are not married and not "registered" but have
"partnership" benefits through your company-- or because
you decided to "register" your partnership. (At
present, only older couples not of the same gender can opt for this
instead of "marriage.")
The Coming Storm
Well, the "California Registered Domestic Partner Rights and
Responsibilities Act of 2003" will be "operative" on
1-1-05. This new law enters the "real world"
as Family Code Sections 297-1999.3 and if you don’t know about
them, you may be in for some surprises. Those who have previously
taken some action to register their partnership-- same sex or "senior
citizen" -- you are all affected. Some of you have been or will
be notified -- but most of those who stand to be affected won't get
a letter.
AB 205 provides that: "registered domestic partners shall
have the same rights, protections, and benefits and shall be subject
to the same responsibilities, obligations, and duties under law, whether
they derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses." Fam
C §297.5(a). this means pretty much everything will be reinterpreted
if you are in an "RDP"-- and these types of things invariable
seem simple to the drafters-- and not so simple to the people caught
up in the system. this is bound to leave a lot up in the air until
someone has spent the money to take a case up on appeal.
See you in Court?
There is good new here-- and bad news. The good news
is, registered domestic partners (RDPs) will get more benefits then
they could previously get through state law. The bad news is, most
of the benefits companies gave voluntarily may now be unavailable
to couples who do not -- or cannot-- register. Family Code Section
297.5 will be operative at the start of 2005-- and it changes the
"RPD" landscape in ways both large and small.
Under this Family Code section "RDP"s will theoretically
be treated the same as spouses. They will have the same rights and
duties. For exampe, fiduciary duties to one another, and spousal support
after a breakup. That is, higher earring partner will have to share
their higher earnings the same way that ordinary (ex) married folks
do now-- and will be subject to the same expensive, toxic court battles
they have until now been able to escape.
We Will all be confused
Also, there will be 2 tracks for couples who want "out."
They can stay outside of the divorce law arena, which means they will
have to rely on civil courts and contract remedies. (IF they notify
the state at the time they register their partnership.)
OR-- they can divorce under California law just like everyone else,
which will be the "default" setting.
And this is also tricky, as the Federal agencies will not recognize
orders from the state courts for support the same way they do for
"traditional" couples, nor will any tax benefits accrue
to RDPs or those RDPs who are same sex, and may have been legally
married or registered in another jurisdiction (like Canada or Massachusetts.
see http://www.samesexmarriage.ca/equality/rdp_main.htm
for a Canadian article.)
What about agreements in place?
A California lawyer who does a niche practice for same-sex couples
says he is
Concerned about the fate of couples who executed [RDP] contracts and
"opt out" of the law. "Couples who devised such contracts
often used the same attorney … which would disqualify the contracts
as prenuptial agreements under California law. " … (Emphasis
mine--because this is not quite true. However, there are many pitfalls
in this whole area, of which non-recognition due to the anti "Bonds"
legislation is but one))
"I've learned to say ‘I don't know' with sophistication,'
said Hertz, a solo practitioner in Oakland. " The bottom line
is -- no one knows just the old law really provided, and the new law
introduces new uncertainty. Bot it is certain that the more you know
early on, the better. Knowledge is power, and if you are not in a
traditional set up, you will need all the power you can gather up.
A brave new world?
As a fervent proponent is sanity in the arena of conflict resolution,
I can hope that same sex couples and RDPs who choose this option over
traditional marriage who be role model in ending their relationships.
An example of people doing this is the following: Richard Gordon,
president of A Fair Way Mediation in San Diego, has experience in
the dissolution of same-sex relationships. He said he creates fair
outcome for his clients by operating as if they were married in a
community-property state. "That way, the assets and debts are
fairly apportioned," he says.
What about married there, living here?
"As of March 26, 6,807 civil unions have been performed in Vermont,
but only 974 of the couples were state residents, according to Richard
McCoy of Vermont's Department of Health." (Lawyers Weekly 4-12-04)
Many couples who have traveled to a city, county, state or county
that allows marriage or civilly recognized union go back to their
homes after this. On couple never could decide in which state to reside,
so they a wanted to get a "divorce" to make sure there were
no loose ends. The state they tried to file in was initially not cooperative.
The cost of the appeal that ultimate allowed the gentlemen to get
a divorce dissolving g their Vermont marriage was probably enough
to have bought someone a REALLY nice sports car…so think twice
before you leap.
Now what?
Since that case-- a Massachusetts case-- is the first one to allow
this type of divorce, lawyers in all the other states are looking
to this appellate decision for guidance. But practitioners all across
the country agree-- it is unwise NOT to have a carefully drafted written
agreement covering all the many aspects of your future which will
be affected by either a marriage or a civil union. (It's also wise
for couples generally, but there is still much reluctance for such
couples to acknowledge the economic realities of their marriage. For
the statistical realities of their likelihood of managing the "happily
ever after," see Why Divorce Costs Time,
Energy And Money; Marriage -- The Myth And The Reality
OK I won't get divorced-- what about when one of us dies?
Inheritance laws and tax laws are still potential traps for the unwary.
An excellent article on this topic can be found at http://ceb.ucop.edu/info/ab205.htm.
"The New Domestic Partnership Law".
But there are other issues as well: only family members are allowed
to see patients in critical care, this often comes as a nasty surprise
at the worst possible time. And of course, parental rights may be
in issue if there is a breakup. (We don 't yet know if the new California
law will be retroactive.)
The courts and the various agencies which have familiar ways of dealing
with "traditional" families are deeply divided on any how
to deal with family they have not "always done this way."
This new law is complex, and its effects are even ore complex. The
letters which were to be sent to RDPs may or may not be sent, may
or may not be received, may or may not be opened. And they just tell
the RDP to "consult and attorney." (Oh, yeah-- like that'll
work!)
Can somebody give me this slowly?
And excellent chart listing the many ways this law does
and doesn’t protect RDPS can be found at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1320
California's New Domestic Partnership Law; an Overview."
As much as I know I will sound like the infamous "Cassandra"…
be of good cheer that the state of the law is evolving-- but be mindful
of the fact that such times of change courts and legislatures often
grind up quite a few victims before they get it right!
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