Same-Sex Partner Issues

In this ever changing political and legal climate, same-sex partners face a host of legal issues. Same-sex couples who have become Registered Domestic Partners and couples who married in California between June and November of 2008 face legal separation or divorce, spousal support, division of assets and property, child custody and visitation, in the same court process as heterosexual couples. Same-sex couples may also need to address issues of adoption, surrogacy, reproductive assistance technologies, and establishing parental relationships.

Complications arise when couples move to a state that does not recognize their marital status or Registered Domestic Partnership and courts are forced to unwind undefined same-sex relationships without statutory structure to determine the distribution of income, assets, debts, retirement plans, and real property. Same-sex couples may have difficulty with state agencies recognizing attendant marital status benefits and may even be denied access to the courts for divorce or resolution of their family law issues. The state may refuse to recognize same-sex couples’ intentions regarding their joint property or emergency room wishes.

Although written agreements cannot change a couple’s legal status, the couple can determine how they would like to address the implications of their relationship in the uncertainty of the changing law. Agreements like premarital agreements become essential in undefined relationships and same-sex couples are desirous of agreements regarding: what property is considered separate, what property is considered joint, what their interests are in real property owned, who does income belong to, who is responsible for debt and how is debt to be paid, how will taxes be filed and paid, and who will use which tax status and claim which exemptions.

Agreements can further set forth the parties’ relationship with children, and in the event of a break-up, how property will be divided, what provisions, if any, will be made for spousal support, and what security, enforcement and remedies apply in the event of breach. Wills and trusts are equally important to delineate distribution of estates upon death and carry out the parties’ intentions. Power of Attorney and Advance Health Care Directives hold special significance in the lives of same-sex couples in the event that one partner becomes incapacitated, the other partner has the ability to make critical decisions regarding children, medical treatment and hospital visitation.

For more information about an agreement that would protect your interests and suite your goals, please contact Nicole Whyte at (949) 221-1000.

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