Divorce Mediation Blog

As Same Sex Marriage Returns to SCOTUS, Massachusetts Should Celebrate Our Own

Wednesday, May 13, 2015

As we await the U.S. Supreme Court’s latest and perhaps ultimate same sex marriage decision in the four cases led by Obergefell, et. al. v. Hodges, it is worth recalling the breathtakingly fast (for all of us not personally disabled by marriage inequality) evolution in this country’s attitude. Can it be that less that barely 3 years ago, President Obama’s hand was forced by VP Biden’s gaffe (or was it?) to support same sex marriage? And, now, according to some pundits, the Republican party is praying that SCOTUS will strike down all state bans, to extricate the GOP from the pro-discrimination political box that they have crafted to win primaries and lose nationally. Could it be more ironic that Justice Roberts may hold the key to Republican presidential success, by siding with the liberal side of the Court against his own party’s 2012 platform, let alone its culture warriors?

As Massachusetts lawyers, it is equally worth celebrating the Commonwealth’s role in starting the ball rolling. From Mary Bonauto’s groundbreaking advocacy (she also argued the SCOTUS case last month) to Margaret Marshall’s Supreme Judicial Court leadership and eloquence in 2003’s Goodrich v. Department of Public Health, we have much to make us proud. As a state that has not always led with honor (before Plessy v. Ferguson, there was the SJC’s Roberts v. City of Boston, the seed of Plessy’s treacherous outcome) we certainly did so, here. Even the flap that followed the Goodrich decision and preceded it’s 2004 effective date, during which the Court gave the legislature the opportunity to pre-empt its ruling with marriage equality legislation, was brief and relatively contained.

Since then, has the sky not fallen, but one state after another (and D.C.) have followed suit.

When the history of this era’s civil rights development is written, Bonauto and Marshall will be recognized as giants of the ongoing national struggle to expand rights. Whatever SCOTUS decides this term, or later, we owe these women a debt of gratitude.


IRS Augments Doma Death, But Will It Last?

Monday, September 02, 2013

Our guest blogger, CPA Richard Streitfeld, recently detailed the ways in which the United States Supreme Court’s eradication of the federal Defense of Marriage Act (DOMA) provided incomplete tax equity for same sex spouses who live in the majority of states that either ban gay marriage, or that have not yet authorized it. The Obama administration has addressed many of these issues, first by declaring that the military will use “state of marriage” rather than “state of residence” for military benefits and VA purposes; and more recently by declaring that enforcement of federal taxation laws will essentially follow suit.

This is good news for marriage equity proponents and sympathizers; but it is way too political for comfort. Given the behavior of Congress (are they back from vacation, yet?), President Obama has addressed matters ranging from immigration reform to guns to same sex marriage by those means left open to him: executive orders and by bureaucratic mandate. While each serves a policy purpose now, does it help in the long run?

The problem, of course, is that, like the stem cell research battles of the 90’s and 00’s, and the abortion debate that continues unabated, each new president can stretch and contract executive decisions to meet his (no her yet) political and social perspectives. While Obama’s accidental (at least as to timing) embrace of gay rights, after being outed by Vice President Biden, helped to intensify the same-sex voting bloc for the 2012 election, will gay and lesbian support for the next Democratic candidate be enough to prevent a Republican administration from taking an IRS “mulligan” in 2017?

One hopes that shifting demographics and popular national support for gay civil rights, not to mention the avoidance of taxing chaos in favor of some policy stability, would incline a Republican successor to leave well enough alone, with the dust settled on Obama’s decision, and plenty of other culture wars fish to fry. But, who knows…

For now, we can hope.


Marriage Equality: Politics and Supreme Court Briefs

Wednesday, March 06, 2013

As Massachusetts lawyers, we have prided ourselves by association with the SJC’s Goodridge v. Department of Public Health decision. For the people directly involved in the battles for gay and lesbian rights, progress from then until now has probably seemed to be painfully slow; but to those of us not on the front lines, perhaps bearing in mind the historical path of previous civil rights aspirants like African Americans and women, it can seem breathtakingly fast -- and that is good.

We have previously blogged about the federal Defense of Marriage Act (DOMA), and the utter indefensibility of congressional authorization to pay for its defense before the United States Supreme Court. More recently, and more happily, we discussed the 2012 elections, in which three states broke new ground with statewide electoral victories for marriage equality. The whiff of inevitability that last November was advanced further last week, when the Department of Justice filed briefs not only in support of DOMA’s demise, but also in support of striking California’s Proposition 8 ban of same sex marriage.

How remarkable is that? A presidential administration supporting constitutional attack on legislation signed by the last president from his own party; then filing a brief on what is ostensibly a purely state matter where the government is not even a party; all following closely on the heels of the abolition of “don’t ask, don’t tell.” It may seem less surprising after the President’s second inaugural address and the views that he espoused during the 2012 election (doesn’t it seem like eons since Vice-President Biden outed the President, intentionally or otherwise?), but isn’t this the same President who comforted some by declaring his personal view that marriage is between a man and a woman, just 4 years before?

Regardless of what the Supreme Court rules this year, once civil rights movements take hold in this country they tend to go generally in one direction. With marriage equality beginning to take hold with the electorate in November, more so in the popular opinion polls since, and with the cause now being re-cast by a growing minority of conservatives thinkers as their own, the inevitable end looms closer.

From Justice Marshall to Ted Olson to President Obama, that is something for which we can all be proud and grateful.


Same Sex Marriage after Obama-Romney

Wednesday, December 19, 2012

The 2012 elections are behind us, thank goodness.

We will remember them for the ebb and flow of the presidential confrontation between President Obama and Mitt Romney, and its attendant drama, both media-manufactured and real. But, in the long run, we wonder if the exercise in direct democracy that played out in the decisions of four states on the matter of marriage equality will outweigh the important consequences of the this election cycle at the “top of the ticket”.

After the Massachusetts landmark 2003 Supreme Judicial Court decision to permit same sex marriage, the acts of five other supreme courts or legislatures followed suit over time. Sometimes these actions were controversial. Interests opposed to the SJC’s action attempted to block the decision by legislative action here, before its May 2004 effective date. In Iowa, the voters purged its Supreme Court justices blamed for the legalization decision. When legislatures acted in New York, Vermont and Washington, D.C., the opposition reaction was more muted. After all, the action was legislative and not the result of “judicial activism”.

November 2012 was different. It was direct democracy in action. In these states, the populations led the leaders. In Maine, Washington State and Maryland, the voters seized the initiative and extended marriage affirmatively to gay and lesbian couples by referendum. Remarkable actions all, but standing alone, they might still be marginalized as coastal elitism. But Minnesota stands alone. For the first time, a state in the middle of the country, by statewide vote, declined to ban gay marriage, after years of other states doing exactly that.

“Suddenly”, twenty per cent of the states embrace marriage equity. Was all of this simply a product of blue states in a presidential turnout year being encouraged by Vice-President Biden’s “accidental” outing of the administration’s support of marriage equality – followed by the President’s public affirmance? Or was a cresting wave hitting the social fabric of the country? The answer may be “both of the above”, but if history is a guide, November 2012 will be remembered as the date that hastened the end of official discrimination against gays and lesbians.

With a plateful of economic and foreign policy crises, and maybe even some long overdue attention to our ongoing national gun/mental health negligence, it cannot be in the forefront, but can the end of federal discrimination, festering in Defense of Marriage Act, survive much longer? With the Supreme Court accepting one Defense of Marriage Act (DOMA) challenge, and the marriage equity case from California, for review this term, we cannot know if the trend will be encouraged or slowed. But, in the end, the painful and gradual, but continuing trend of civic emancipation continues: and November 2012 will take a place of significance in that history.


Spousal Medical Insurance After Divorce: A Priority

Wednesday, August 08, 2012

Many, many years after Massachusetts’ (pre-Romney) groundbreaking effort to provide medical insurance for non-employee former spouses beyond the rights provided by the federal COBRA laws, we remain the most advanced state in this regard; but not without our own continuing uncertainties. In the most general terms, COBRA allows a divorced heterosexual person (don’t forget the Defense of Marriage Act: it is, regrettably, still national law) to buy continuing health coverage through the other spouse’s employer plan for a period of up to three years post-divorce only, at a cost of 102% of the cost of an individual plan member. Massachusetts, by contrast, offers an indefinite period of coverage at no cost beyond that required for the employee spouse to cover himself and children under a family plan without a fixed limitation of years; and when child coverage is no longer necessary, the non-employee may still have coverage on the family plan if the employee has not remarried, without a time limit. If the employee spouse marries another person, the former spouse may still be covered at the cost of an individual employee, by use of a rider. The non-employee spouse loses these rights whenever she remarries.

Yet, when the law was enacted, it had a loophole that has not, to this day, been closed:  self-insurance.  The law is an insurance statute and not a generic healthcare provision, so employers who choose not to buy an insurance product for their employees, but instead pay defined medical costs themselves, are exempt for the law, even if the hire an insurance company to provide administrative services to help run their internal plan.  It is likely that self-insurance employers become “insured” for the law’s purposes if they buy “stop loss” insurance (that is, if costs go above a certain amount, an insurance company steps in to cover the excess – think catastrophic coverage for the employer), but this information difficult to ascertain, uncertain and costly for the consumer to enforce.

There also remains a lack of clarity about what is a Massachusetts employer for purposes of the law. Many companies who do business here, but are based elsewhere, continue to contend that their obligations are covered by the (lack of) law to trump or augment COBRA in their home state. There is also uncertainty about what happens to the non-employee former spouse’s coverage if the employee changes jobs or moves out of state. To make matters more difficult, many company human resource departments appear, genuinely or not, to be hearing about our laws for the first time when counsel or client inquires.

For all of these reasons, it is a priority in any divorce action for the parties to gain and share the greatest level information possible about the employee spouse’s coverage, at the earliest time available in the divorce process. This information is all spelled out somewhere in paper or digital format; and if it is left to be treated as a last minute detail of divorce negotiation, or as one that is informed by casual representations only, disastrous and unanticipated consequences can occur. Sometimes, significant time must be invested in communicating with the employer about its state law obligations before they will be acknowledged and honored. In some cases, litigation, or the suggestion of same, may even be necessary.

As always, knowing is essential; and time is an ally.


Same Sex Marriage Meets Civil Union Dissolution

Wednesday, August 01, 2012

In last week’s Massachusetts Supreme Judicial Court’s (SJC) case of Elia-Warnken v. Elia, the court ruled that a civil union from another state (Vermont in the facts of this particular case) is the legal equivalent of marriage when it interacts with our laws of marriage and divorce. The question arose: when a person became part of a civil union in a state that had not yet recognized the right of same sex marriage, and had not obtained a legal dissolution of that union before marrying here, does this constitute polygamy, making the Massachusetts marriage void. The answer was a clear “yes”.

In doing this, the SJC maintained a consistent view that it will not tolerate a continuation of the national practice (that is, in most states individually who do not recognize same sex marriage, and in federal law, where the Defense of Marriage Act (DOMA) precludes it for federal purposes, and exempts the states from having to acknowledge it) of domestic discrimination against gays and lesbians. The court reasoned that to treat civil unions as anything less than a marriage for our state’s purposes would do exactly that.

So, for a civil union partner to marry in Massachusetts he or she must dissolve one legal relationship before entering into another, whether the prior one be one that is called “marriage”, or a civil union. Strike a blow for marriage equity and against one fear mongered by those who continue to champion DOMA: that somehow same sex marriage will lead a creeping acceptance of polygamous marriage.


Same Sex Marriage and Child Custody: An Important Decision

Friday, March 02, 2012

For many years, former husbands and wives on Massachusetts have commonly shared legal custody (major life decision making) of their children. This happens except in unusual cases such those involving domestic abuse, drug or alcohol problems, unavailability or extreme disinterest of one parent. In unmarried parent cases (they out number divorce custody cases now), the rules are different, in that a mother is still presumed to be the custodial parent unless the other parent can prove a clear history of parent cooperation before the start of court involvement. The lack of a marriage is the key difference.

But what about legal custody of children born during same sex marriages? Massachusetts has permitted and facilitated same sex marriage since 2004. This occurred though a Supreme Judicial Court case called Goodridge v. Dept. of Public Health. (Several other states have since followed suit.) The Supreme Judicial Court (SJC) did this because the justices concluded that the state constitution demanded it. The decision was controversial at the time but after nearly eight (8) years, same sex marriage is entrenched and, for the most part, fully accepted here.

But, with marriage comes divorce, and same sex marriages are no exception. So, after that passage of time, same sex marriages have found their way into the divorce courts, and when children are involved, this has resulted in custody matters.

Since the pre-existing law and practice for straight spouses was to encourage joint involvement and decision making for children, why would this not immediately translate to same sex spouse after divorce? The prime reason is biology. To be eligible for joint legal custody, a person has to be a child’s legal parent. Under the law, if a child is born during a marriage of the mother, her husband is presumed to be the child’s legal father, whether or not he, in fact, is the biological the parent. This is because the law wants to encourage “legitimacy” of children where possible,.

When the SJC said that same sex couples could marry in Goodridge, it also commented that certain state statutes should be read in a gender neutral way, that is: “husband” equals “spouse”, regardless of gender. But there are many such statutes, and one of them is the presumption of legitimacy law that we noted above. It says that a child born during a marriage “…shall be considered to be the legitimate child of the mother and such husband”. But the Goodridge case was not about the legitimacy statute. In the very recent case of Della Corte v. Ramirez, this issue arose. The biological mother of a child (Della Corte) claimed that her same sex spouse (Ramirez) could not share legal custody because she was not a legal parent, even though the child was born during their marriage. Della Corte argued that Ramirez could only become the legal parent by adoption since she was not a husband; and she had not adopted the child.

Clearly, Ramirez could not be a biological parent, so unless the legitimacy statute was applied to same sex parents, regardless of gender, Ramirez was out of luck and without custodial rights. Fortunately for Ramirez, the trial judge disagreed with Della Corte. He believed that the Goodridge decision, and its commentary about gender neutrality, required him to rule that Ramirez was accorded the same rights as a husband under the legitimacy law. Therefore, he concluded, she was the child’s legal parent, as that would be the only way to apply the law in a gender neutral way. Since the other facts of the case justified it, he awarded Ramirez joint legal custody, as he would any other parent.

Most lawyers think that this case established, beyond further serious question, that custody matters will be decided by the same rules for all marriages, same sex or otherwise, in Massachusetts, hereafter.


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