Don’t let this expanding area of law leave you behind.

By Marilyn S. Michel, Family Law Attorney
Same sex divorce

The practice of family law includes same-sex relationships such as domestic partnerships, civil unions, and marriage. Without a substantial body of case law, it is difficult to predict how specific facts will be interpreted by the courts. New fact patterns are being created every day by people going about their daily lives. Don’t be afraid to expand your law practice by accepting these new clients.

Making Your Office Same-Sex Friendly

The LGBT community is generally well-informed; developments in the law are followed closely. Income varies widely, and so do political convictions. It is best to avoid stereotypes. You and your staff should concentrate on each individual, making as few assumptions as possible. Transgender persons usually present themselves as they wish to be addressed, female or male. Some may prefer a gender-neutral pronoun, such as “they.” If there is any doubt, your client intake sheet can include a line for the client’s preference. Respect is essential, warmth and understanding are appreciated.  

Get All the Facts

Ask your potential client about domestic partnerships and civil unions (in other states) in addition to marriage. Some couples entered into alternative legal arrangements before marriage, including joint deeds to real property and health insurance applications. Some couples registered with a city or county, or an employer, and not the Secretary of State of California. The family law court may not have jurisdiction without a valid registered domestic partnership or marriage, but putative spouse protections are available under Family Code Section 2554. Family Code Section 297.5(a) extended all of the rights and responsibilities of married spouses to domestic partners commencing in 2005. The Petition for Dissolution has been modified to include both domestic partnership and marriage, so both can be handled in one proceeding.

Family Code Section 299(d) allows a petition for dissolution to be filed in the county where the domestic partnership residence was located, or where the marriage occurred, even if both partners/spouses reside outside California. This may not extend to custody proceedings if the children reside in another state.  

California does not recognize common-law marriage, but prior cohabitation may be a factor in deciding some issues. A real property deed may have been executed prior to marriage as joint tenants or tenants in common, not community property. A child may have been born to one spouse/partner, without formal adoption by the other. A genetic link is no longer required to establish parental rights, but your client may have to show the past relationship with the child and why it is in the child’s best interests to maintain the relationship.  

Private Agreements

same sex marriage

Same-sex couples may have used a surrogate to produce a child, or used semen which was not processed by a licensed doctor or clinic. These facts indicate a potential third-party claim to custody, or liability for child support. California allows for three parents if “only two parents would be detrimental to the child” (Family Code Section 7612(c)). It is against public policy to deny the child the right to support, or a relationship with a legal parent, absent proof of endangerment.

Prenuptial agreements for same-sex couples are subject to the provisions of Family Code Section 1612 et seq, including the bar against any violations of public policy (Section 1612(a)(7)). Attempts to keep finances separate may run afoul of IRS rulings which require married couples and registered domestic partners  in community property states, such as California, to declare one-half of each other’s income and exemptions. These rulings have not yet been tested by case law, but it is important to advise your clients of the need to consult with accountants before registration or marriage, as few taxpayers want to be test cases.    

Termination/Dissolution of Domestic Partnership or Same-Sex Marriage

A joint termination request for a domestic partnership can be filed with the California Secretary of State, without payment of a filing fee. The joint termination request can be set aside by either partner within six months, and the family law court retains jurisdiction to address allegations of fraud, if necessary (Family Code Section 299(c)).

If your client obtained a name change with the registration document, a joint termination petition or other proceeding must be filed to restore the former name. Dissolution, nullity, and legal separation are all available to same-sex litigants.  

Courts are supposed to be impartial, but the possibility of prejudice must be evaluated by the attorney on behalf of the clients. Larger family courts, with more experience and more coherent policies, may be more favorable to same-sex clients. Small branch courts with only one family law judge or commissioner may pose a problem, unless the judicial officer’s views on same-sex relationships are known. It is widely believed that a man has more difficulty in obtaining a restraining order against another man, for example.

Custody decisions may be more difficult. A genetic link is no longer required, but may work in favor of the genetic parent, especially if that parent stayed at home with the child and was the primary caregiver. Your client should be prepared to demonstrate his or her involvement in the child’s life.   There may be some bias in favor of a parent who leaves a same-sex relationship and enters into a new, heterosexual relationship. Your client may have absorbed some anti-LGBT messages which make him or her feel less important to the child. It is best to discuss all aspects of any potential custody disputes as soon as possible.  

Your client’s appearance might be a factor, especially if their appearance does not match their birth gender. Should you ask your client to alter his or her appearance? This may be offensive to the client. It might be helpful for them to attend a court session as an observer. Many family law clients have never been involved in any litigation before. Explain to your client that family law judges have wide discretion, and appeals should be avoided.   

Public Attitudes

Members of the LGBT community have a long history of being considered outsiders. Despite political ups and downs, the long-term trend is for more rights and greater acceptance. Ten years ago a family law attorney told me he would hesitate to accept an LGBT client, but I wonder if he feels the same way now.  There is no discernible movement in California to reduce the rights of same-sex couples.

Marilyn Sue Michel is the owner of Wise Law Clinic. Marilyn’s practice concentrates on family law issues, including same-sex relationships, premarital and postmarital agreements, and late-stage life planning, including advanced health care directives, revocable trusts, and simple wills.

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