Archive for the ‘same sex marriage’ Category

Same Sex Marriage Bill Passes in New York

Monday, July 4th, 2011

On June 24, 2011, New York Senate voted, 33-29, to give final approval to a bill, A-08354, that recognizes same sex marriage in New York. Govenor Andrew M. Cuomo immediately signed the bill which will become effective in 30 days.

The bill, codified as the Marriage Equality Act amends the Domestic Relations Law to provide:

• A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex

• No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex

• All relevant gender-specific language set forth in or referenced by New York law shall be construed in a gender-neutral manner

• No application for a marriage license shall be denied on · the ground that the parties are of the same or a different sex

Under the bill, the rights under same-sex marriage will include:

• Employer-sponsored health insurance.

• Equitable property distribution, maintenance, custody and visitation if the couple divorces.

• A presumption that a child in a dissolved marriage is the child of both parents.

• Statutory inheritance rights.

• The right to bring a claim for the wrongful death of a spouse.

• The right to seek Workers’ Compensation death benefits.

• The spousal privilege in legal proceedings.

Update on Dissolution of Out-of-State Civil Unions

Saturday, April 3rd, 2010

I have previously written regarding the problem posed by out-of-state civil unions.  Under New York law, while such unions are recognized through the principles of comity, New York does not have any legislation that addresses how these unions may be dissolved once one or both of the parties reside in New York.

The prior decision, made by the trial court, stated that the court would have jurisdiction to address dissolution of the civil union.  However, the court was searching for the way to accomplish this and suggested that the complaint be pled to seek dissolution of a civil union, as opposed to a divorce, as a complaint was plead initially.  As a trial court decision, B.S. v. F.B., did not carry a significant weight of authority and would not be binding on other trial courts.

Now we have the first appellate level decision to address this issue.  In Dickerson v. Thompson, 2010 N.Y. Slip. Op. 02052 (3rd Dept. 2010), the Appellate Division, Third Department, held that New York court have subject matter jurisdiction “to entertain an action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.”  The court did not determine the scope of the relief that may be available in such action.

What is obvious from the decision is that the Appellate Division believed that the courts had authority to handle such cases, but was struggling come up with the way to accomplish the dissolution.  What makes it difficult, is the fact that when a divorce takes place, the court will address such issues as custody, child support, spousal maintenance, and equitable distribution.  All of the above issues are resolved in accordance with the provisions of the Domestic Relations Law.  What is unknown is how the courts will handle custody, child support, spousal maintenance and equitable distribution in dissolution of a civil union, something that apparently carries less weight in New York courts than a traditional marriage.  Does entering into a civil union create a potential entitlement to a spousal maintenance?  I don’t know the answer to that question, I suspect that the courts do not know the answer to it either.  It is quite likely that New York legislature will have to address these issues and, until then, the courts will try to come up with some ways of addressing these issues.

For a divorce lawyer, the above represents an excellent example of uncertainty created by the lack of uniformity in the states’ treatment of same-sex relationships. It also brings up a host of interesting legal issues that attorneys must recognize in handling similar situations.

Same Sex Marriage and Inheritance Rights

Monday, February 9th, 2009

I have previously blogged about recognition of same sex marriages by New York courts, and specifically, Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept. 2008). The courts have applied Martinez in recognizing the right to benefits, divorce, adoption, and now, inheritance rights. In a recent decision, In re Ranftle, N.Y.L.J., (Feb. 3, 2009), the Surrogate Court in New York County recognized a same-sex marriage entered into in Canada for the purpose of determining decent’s distributees.

The decent H. Kenneth Ranftle, married his same sex partner, J. Craig Leiby, in Monreal, Canada, on June 7, 2008. He died on November 1, 2008, and was survived by Mr. Leiby and three siblings. Relying on Martinez, the Surrogate Court recognized the marriage as valid and entitled to recognition in the Sate of New York. Therefore, Mr. Leiby was declared to be decedent’s surviving spouse and sole distributee under Estates Powers & Trusts Law §4-1.1. Under Estates Powers & Trusts Law §4-1.1, Mr. Ranftle’s siblings will not be entitled to any part of his estate.

Same-Sex Spouse Needn’t Be Certified to Adopt Partner’s Child

Monday, January 19th, 2009

In November of 2008, I wrote about New York courts granting a divorce to a same sex couple. In C.M. v. C.C. (Sup. Ct. New York Co. October 14, 2008), the trial court held that the New York court had subject matter jurisdiction to grant a divorce to a same sex couple who were married in Massachussetts. The trial court held that in following Martinez v. County of Monroe and other cases dealing with recognition of the same sex marriage, it had the subject marriage jurisdiction and the divorce case between two women could continue. Since that time, we are seeing various rulings that followed the holding in Martinez. A few days ago, in Matter of Donna S., 2009 N.Y. Slip Op. 29009 (Fam. Ct., Monroe County, AC-14386-08), Judge Joan S. Kohout, held that there was no need for the same-sex spouse of a woman due to give birth in March to seek pre-certification to adopt her partner’s child. Judge Kohout ruled that because the couple’s Canadian marriage is recognized under New York law, the spouse could be treated exactly the same as the husband of a woman who became pregnant through donor insemination, in which case neither pre-certification nor an adoption proceeding would be necessary to establish a parental relationship with the child.

According to Judge Kohout’s opinion, Donna R.S. and Lisa P. were married on July 4, 2007, in Ontario, Canada. Lisa has become pregnant through donor insemination, and is due to give birth in March. Donna initiated the process of being approved as an adoptive parent, with the intention of adopting the child when he/she is born. As part of a normal adoption process, she submitted to a home study by a social worker, who produced a positive report, and then she submitted her petition to the court to be “pre-certified” as an adoptive parent, so the adoption procedure could be handled expeditiously after the child is born.

Pre-certification is a legal process that is typically handled at the start of every adoption. A successful pre-certification process is critical and involves filing pleadings with the appropriate court, a home study, child abuse clearance and criminal record check. Once a prospective adoptive parent has been precertified, he/she can proceed with pursuing a domestic adoption. The “certification” includes a homestudy, child abuse clearance and criminal record check prior to the adoption, and a follow-up homestudy before the adoption is finalized. This requirement was brought into being as a result of the infamous Steinberg case, so that all parties in the adoption process are protected.

The petition did not specify that Donna was seeking to adopt any particular child, but merely wished to be certified as qualified in general to be an adoptive parent. The home study made it clear to the court that her intention was to adopt her same-sex spouse’s child.

Judge Kohout considered the pre-certification process to be unnecessary. Pointing out that the Appellate Division’s ruling last year in Martinez means that “the marriage of same sex couples legally married in other jurisdictions must be recognized by New York,” and mentioning as well that Governor David Paterson had directed New York state agencies to “apply statutes and regulations in a gender neutral manner to same sex parties validly married in another jurisdiction,” Judge Kohout decided to treat Donna similarly to the husband of a woman who has become pregnant through donor insemination.

In those situations, an adoption proceeding is unnecessary. Spouse’s parental status is established by the parties’ execution of a consent form, indicating their agreement that the birth mother’s spouse will be the legal parent of the child.

Additionally, Judge Kohout considered an alternative approach: “Since Ms. S. is the spouse of Ms. P., she will at the very least be considered a step-parent to Ms. P.’s child after the child’s birth. Step-parents are not required to be pre-certified as qualified adoptive parents for the purpose of adopting their spouse’s child.” However, step-parents would have to fulfill a one year waiting period to adopt, or get approval to waive the waiting period from the court.

In conclusion, Judge Kohout stated that the situation could be resolved by the statute governing donor insemination, pointing out that “a child born to a married woman by artificial insemination is deemed the legal child of the husband if both spouses execute a consent to that effect. Given the holding in Martinez, it would seem that by the simple execution of a consent, Ms. S. could become the baby’s legal parent without the necessity of an adoption.”

However, since all the paperwork was in order and there was a positive home study report on file, Judge Kohout granted the pre-certification petition, so the petitioner was eligible to adopt a child until the expiration of the petition in May 2010.

New York Court Grants Same Sex Divorce

Monday, November 3rd, 2008

A New York judge has ruled recently in C.M. v. C.C. (Sup. Ct. New York Co. October 14, 2008), that the New York court had subject matter jurisdiction to grant a divorce to a same sex couple who were married in Massachussetts. The court held that in following Martinez v. County of Monroe and other cases dealing with recognition of the same sex marriage, it had the subject marriage jurisdiction and the divorce case between two women could continue. The couple can now obtain their divorce in New York, assuming that they have sufficient grounds to do so, and meet other jurisdictional requirements of New York’s Domestic Relations Law.

I have previously written about Martinez v. County of Monroe, so this decision is merely a logical extension of that decision.

Massachusetts Same Sex Marriage and Same Sex Couples Residing in New York

Wednesday, August 6th, 2008

On July 29, 2008, the Massachusetts House of Representatives voted overwhelmingly to repeal the 1913 law that prohibited non-resident gay and lesbian couples from marrying in Massachusetts, unless their home state also would recognize their marriage. Now that both the Senate and the House have passed the legislation to repeal the 1913 law, the bill will go to Governor Duval Patrick, who is expected to sign it. As a result of the repeal of the statute, gay and lesbian couples residing in other states would now be permitted to marry in Massachusetts, even if their home states would not permit them to marry in their home states.

While New York will not allow same sex couples to wed, it will recognize marriages performed in jurisdictions that allow same sex marriage. In doing so, the New York courts will follow the precedent set in Martinez v. County of Monroe. In that case, the plaintiff brought a challenge to Monroe Community College’s denial of health care benefits to the female partner of a female student. The Appellate Division had considered the following facts. On July 5, 2004, Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of Monroe Community College, in Rochester, New York. On the basis of that marriage, Ms. Martinez applied to the college two days later, on July 7, 2004, for spousal health care benefits for Ms. Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College’s Director of Human Resources denied the plaintiff’s application for spousal health care benefits. The plaintiff then commenced an action seeking, among other things, a declaration that the College’s failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law §296.

In deciding the couple’s rights to insurance coverage, the Appellate Division, Fourth Department, had to decide whether the parties were legally married. It held that if a marriage was valid in the place where it was entered, “it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute”. The Court then pointed out that by applying the “marriage-recognition” rule, New York has recognized a marriage which would have not been valid if solemnized in New York.

The Appellate Division concluded that Ms. Martinez’ marriage to Ms. Golden, which was valid in the Province of Ontario, Canada, would be entitled to recognition in New York. The Court concluded that absent express legislation to the contrary, prohibiting the recognition of same-sex marriages, such marriages would be entitled to recognition in New York.

Following the decision in Martinez v. Monroe County, in the case Beth R. v. Donna M., Acting Supreme Court Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel to address the issue as to whether Beth’s motion for declaration of her parental rights can be entertained by the court. Her legal position was in question since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff’s motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.”

Earlier this spring, New York Governor David A. Patterson has issued an directive requiring all New York State agencies to offer gay couples, wed in jurisdictions that allow same sex marriage (like Canada, Massachusetts and now California), the same legal rights as enjoyed by heterosexual couples.

All of the above is likely to make same sex marriage a reality in New York State, despite a lack of statutory authorization by the New York Legislature. New York couples will be able to travel to Massachusetts with the sole purpose of getting married and have their marriage recognized in the State of New York.