DOMESTIC PARTNERSHIPS, SAME-SEX MARRIAGE AND FAMILY LAW

Same-sex couples now have the right to legally marry in New York State as a result of the Marriage Equality Act that passed in July, 2011. Yet, there are contradictions between state and federal law that must be analyzed. All same sex couples contemplating marriage should seek counsel from a specialist in this area of law. Barry is a recognized expert in this rapidly developing and ever-changing area of law. Barry counsels and represents his clients in the following areas:

• New York City Domestic Partnerships – A Domestic Partnership in New York City may be registered by two people where either or both of the parties are at least 18 years old, are New York City residents, or at least one person is employed by the City of New York on the date of registration. Neither party can be married or related by blood in a way that would bar his or her marriage in New York State. The parties must have a close and committed personal relationship and live together on a continuous basis. Neither party can be registered in any other Domestic Partnership and cannot have been registered as a Domestic Partner within six months of the date of registration.
  
  
• Domestic Partnership Agreements – These agreements specify each partner's rights and responsibilities in their relationship together. They address the partners' division of property, assets, minor children, health benefits, housing rights and other related individual issues specific to the couple while they are together, or in the event of a separation or a dissolution of their relationship.
  
  
• Prenuptial Agreements – Same-sex couples who are legally allowed to marry under state law are not protected by federal law in the same way heterosexuals couples are. The Defense of Marriage Act or DOMA, states that the federal government only recognizes a marriage between one man and one woman and leaves it up to each state to decide if they want to grant same-sex couples the right to marry. As a result, there are complicated tax issues and consequences for same-sex married couples who divorce since they do not receive any federal tax protections that are granted to heterosexual married couples.
  
  
• Second Parent Adoption/Gay Adoption – Permits the partner/spouse of the legal parent to also become the legal parent. A birth mother, a single person who has adopted a child, or a man who has a child through a surrogate outside of New York is the legal parent by operation of law. A surrogacy arrangement or agreement is not legal in New York. The only way to legally protect a non-legal parent's relationship to his or her child is through a second parent adoption. A second parent adoption is given "full faith and credit" in the United States and all other countries. Note that if a non-legal parent puts his or her name on a birth certificate in a state where same sex marriage is allowed by law and then moves to another state or country where it is not, "full faith and credit" is not guaranteed and the rights of the non-legal parent may be put in jeopardy. That is why a second parent adoption is so important for the non-legal parent.
  
  
• Collaborative Resolution – An alternative form of dispute resolution effective in same-sex divorce matters or domestic partnership dissolutions. The separating couples each have an attorney and work primarily in four-way meetings. The separating couple is directly involved in the negotiated settlement process and agreement to resolve such issues as property distribution, child custody and visitation and real estate. Since New York law does not necessarily protect the rights of non-traditional families, the collaborative law approach may be the best way for non-traditional families to reach a settlement that works best for them even if it is different than what the law would mandate. A team of advocates including child specialists and financial experts may be consulted to assist, if necessary. Collaborative Law is different than mediation, which centers on the participants working with one neutral person.
  
  
• Estate Planning – With the ever present changing rules of law relating to inheritance rights for non-traditional families, same-sex couples should insure their protection through appropriate estate planning. The preparation of Wills, Health Care Proxies, Living Wills, Durable Powers of Attorney, releases for access to medical information, directions for the disposition of a partner's or spouse's remains, Standby Guardianship for Minor Children and authorizations to obtain medical care for each other and their children should each be considered and addressed. There are special estate planning issues to be considered and addressed for domestic partners and same-sex married couples who do not have the same legal protections and benefits as heterosexual couples. Consult with Barry to address these complex legal issues and implement an estate plan to insure that domestic partners, same-sex spouses and their children are protected in life and upon death.