The Times they are A'changin'

You may haven noticed that the laws which formerly prevented anyone other than a man and a woman to have marital benefits has been changing all across America. In some cases, the laws have been passed by legislatures. In some cases, there have been changes by "fiat" - actions by mayors and clerks. The results of those actions are being ruled on by courts, and much confusion lies ahead.

And here in California, there has been an enormous change in the "same-sex partnership" laws passed by our busy legislature, under our new governor, a former movie industry insider. (That is to say, unlike many of his political colleagues, he's not opposed to such laws.) The court cases and bold moves have made headlines. but for whatever reason, these new laws have not.

These changes are too massive for anyone (me?) to fully absorb, so the purpose of this article is to give everyone a "heads up" and some resources to sort out what you need to know from what you don't need to know.

Invisible But not Minimal

As of the first of this year (2004) there is a sweeping new law - The "California Registered Domestic Partner Rights and Responsibilities Act of 2003." Many changes are planned to take effect as of January 1, 2005. In 2004, all "Registered Domestic Partners" (RDPs) are to be notified by letter that the laws have the changed - but the letter will not spell out how these laws have changed! And how many people will take the time to read it all? Not many.

I'm from the Government and I'm here to help

Here is the "Official" web page with California information: http://www.ss.ca.gov/dpregistry/California Secretary of State - Domestic Partners Registry." "Welcome to the Domestic Partners Registry!

If you are in a committed lesbian or gay relationship in California, you can protect yourself and your partner by registering as Domestic Partners. If you are in a committed opposite-sex relationship where one partner is 62 years or older, you have the opportunity to register as Domestic Partners. It is important to register if you want your relationship to have legal standing. While registration isn’t the same as marriage, it does secure many important rights and responsibilities. Under current law, registration can protect your rights in times of family crisis, protect your children, and give you access to family benefits at work." (emphasis added)

But I had benefits!

But wait! Some of you thought you were covered already, right? You have employers who give "domestic partnership benefits." Will this change? Yes, Virginia - it will. You will have to make a choice. Either way, things will not resemble the "status quo ante." (The way it was before.)

Also known as AB 205, this became law 1-1-04. Yes folks, that was over 6 months ago at this writing, but you probably didn't hear a word. And boy, does it affect you if you are one of the group of people who are not married and not "registered" but have "partnership" benefits through your company - or because you decided to "register" your partnership. (At present, only older couples not of the same gender can opt for this instead of "marriage.")

The Coming Storm

Well, the "California Registered Domestic Partner Rights and Responsibilities Act of 2003" will be "operative" on 1-1-05. This new law enters the "real world" as Family Code Sections 297-1999.3 and if you don’t know about them, you may be in for some surprises. Those who have previously taken some action to register their partnership-- same sex or "senior citizen" - you are all affected. Some of you have been or will be notified - but most of those who stand to be affected won't get a letter.

AB 205 provides that: "registered domestic partners shall have the same rights, protections, and benefits and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." Fam C §297.5(a). this means pretty much everything will be reinterpreted if you are in an "RDP" - and these types of things invariable seem simple to the drafters - and not so simple to the people caught up in the system. this is bound to leave a lot up in the air until someone has spent the money to take a case up on appeal.

See you in Court?

There is good new here - and bad news. The good news is, registered domestic partners (RDPs) will get more benefits then they could previously get through state law. The bad news is, most of the benefits companies gave voluntarily may now be unavailable to couples who do not - or cannot - register. Family Code Section 297.5 will be operative at the start of 2005 - and it changes the "RPD" landscape in ways both large and small.

Under this Family Code section "RDP"s will theoretically be treated the same as spouses. They will have the same rights and duties. For exampe, fiduciary duties to one another, and spousal support after a breakup. That is, higher earring partner will have to share their higher earnings the same way that ordinary (ex) married folks do now - and will be subject to the same expensive, toxic court battles they have until now been able to escape.

We Will all be confused

Also, there will be 2 tracks for couples who want "out." They can stay outside of the divorce law arena, which means they will have to rely on civil courts and contract remedies. (IF they notify the state at the time they register their partnership.) OR - they can divorce under California law just like everyone else, which will be the "default" setting.

And this is also tricky, as the Federal agencies will not recognize orders from the state courts for support the same way they do for "traditional" couples, nor will any tax benefits accrue to RDPs or those RDPs who are same sex, and may have been legally married or registered in another jurisdiction (like Canada or Massachusetts. see http://www.samesexmarriage.ca/equality/rdp_main.htm for a Canadian article.)

What about agreements in place?

A California lawyer who does a niche practice for same-sex couples says he is Concerned about the fate of couples who executed [RDP] contracts and "opt out" of the law. "Couples who devised such contracts often used the same attorney … which would disqualify the contracts as prenuptial agreements under California law. " … (Emphasis mine - because this is not quite true. However, there are many pitfalls in this whole area, of which non-recognition due to the anti "Bonds" legislation is but one))

"I've learned to say ‘I don't know' with sophistication,' said Hertz, a solo practitioner in Oakland. " The bottom line is - no one knows just the old law really provided, and the new law introduces new uncertainty. Bot it is certain that the more you know early on, the better. Knowledge is power, and if you are not in a traditional set up, you will need all the power you can gather up.

A brave new world?

As a fervent proponent is sanity in the arena of conflict resolution, I can hope that same sex couples and RDPs who choose this option over traditional marriage who be role model in ending their relationships.

An example of people doing this is the following: Richard Gordon, president of A Fair Way Mediation in San Diego, has experience in the dissolution of same-sex relationships. He said he creates fair outcome for his clients by operating as if they were married in a community-property state. "That way, the assets and debts are fairly apportioned," he says.

What about married there, living here?

"As of March 26, 6,807 civil unions have been performed in Vermont, but only 974 of the couples were state residents, according to Richard McCoy of Vermont's Department of Health." (Lawyers Weekly 4-12-04) Many couples who have traveled to a city, county, state or county that allows marriage or civilly recognized union go back to their homes after this. On couple never could decide in which state to reside, so they a wanted to get a "divorce" to make sure there were no loose ends. The state they tried to file in was initially not cooperative. The cost of the appeal that ultimate allowed the gentlemen to get a divorce dissolving g their Vermont marriage was probably enough to have bought someone a REALLY nice sports car...so think twice before you leap.

Now what?

Since that case - a Massachusetts case - is the first one to allow this type of divorce, lawyers in all the other states are looking to this appellate decision for guidance. But practitioners all across the country agree - it is unwise NOT to have a carefully drafted written agreement covering all the many aspects of your future which will be affected by either a marriage or a civil union. (It's also wise for couples generally, but there is still much reluctance for such couples to acknowledge the economic realities of their marriage. For the statistical realities of their likelihood of managing the "happily ever after," see Why Divorce Costs Time, Energy And Money; Marriage - The Myth And The Reality

OK I won't get divorced - what about when one of us dies?

Inheritance laws and tax laws are still potential traps for the unwary. An excellent article on this topic can be found at http://ceb.ucop.edu/info/ab205.htm. "The New Domestic Partnership Law".

But there are other issues as well: only family members are allowed to see patients in critical care, this often comes as a nasty surprise at the worst possible time. And of course, parental rights may be in issue if there is a breakup. (We don 't yet know if the new California law will be retroactive.)

The courts and the various agencies which have familiar ways of dealing with "traditional" families are deeply divided on any how to deal with family they have not "always done this way." This new law is complex, and its effects are even ore complex. The letters which were to be sent to RDPs may or may not be sent, may or may not be received, may or may not be opened. And they just tell the RDP to "consult and attorney." (Oh, yeah - like that'll work!)

Can somebody give me this slowly?

And excellent chart listing the many ways this law does and doesn’t protect RDPS can be found at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1320 California's New Domestic Partnership Law; an Overview."

As much as I know I will sound like the infamous "Cassandra"… be of good cheer that the state of the law is evolving-- but be mindful of the fact that such times of change courts and legislatures often grind up quite a few victims before they get it right!