The Internal Revenue Service has ruled that same-sex couples must be treated the same as heterosexual couples under a feature of California tax law.
Since Washington and Nevada are also community property states with domestic partnership laws on the books, it's very likely that this could impact us here in Washington state as well.
Friday, June 25, 2010
Monday, June 14, 2010
In re Parentage of M.F. - DECIDED
The Supreme Court has decided that step parents don't get to be de facto parents under the circumstances of the M.F. case because there is no statutory void as in L.B. They stopped just short of saying that children can't have more than two parents.
For more information visit this link.
For more information visit this link.
Sunday, March 1, 2009
De Facto Parentage Case Reaches the Supreme Court
There are very few areas of family law that are as controversial and philosophically interesting as the concept of "de facto parentage." On March 10, 2009, the Supreme Court will hear oral arguments in In re Parentage of M.F. In this unique case, the Court of Appeals found that the de facto parentage doctrine may not be used by former step parents seeking court ordered visitation with their former step children. In part, the Court of Appeals notes the existence of other remedies for the step parent in this case, although the step parent notes he would not have been able to succeed or utilize them given the particular facts of his case, whereas he could raise de facto parentage.
De facto parentage cases generally raise the following questions: Should any individual at any time be able to seek court ordered visitation with a child, if such visitation is deemed to be in the child's best interests and they meet the factual requirements of a de facto parent? Or, would allowing these individuals to seek this right under these circumstances infringe upon the constitutional rights of the parent-child relationship -- and should something more be required to be shown, such as unfitness of the existing parent?
You can read the briefs both for & against online here:
81043-5 - In re the Parenting of Marnita Frazier
The concept of de facto parentage originates from In re Parentage of L.B. In In re Parentage of L.B., a nonbiological parent from a same-sex couple (who couldn't legally marry) sought visitation/custody rights to her nonbiological child. In this case, because the nonbiological mother did not adopt and the biological mother would not allow visitation, there was no other remedy. The Supreme Court ruled in favor of the non-biological parent's standing to seek visitation/custody.
There are some very convincing reasons in this modern world why the legal concept of "parent" should expand to include individuals beyond a child's biological mother and father. In this world, where single parenting is becoming common place, it is not unheard of that a third party might step in to provide care in a parental-like role. And, of course, there is the existence of same-sex couples who increasingly have children but are unable to marry. In many cases, these individuals can seek parental rights through adoption, third party custody and other legal means. In other cases, where there is a disagreement about the child's welfare and the existing legal parent is not unfit, there are no remedys available to them.
That is where de facto parentage comes in - to bridge the gap. Because regardless of how it happened, the court cannot deny that these important relationships exist. Arguably, they are important to preserve for the child's best interests, regardless of the feelings of the existing legal parent. But there is some disagreement on how broad or limited de facto parentage should be. Would allowing de facto parentage, as it currently exists, result in 3 parent families, or possibly more? And if so, is this necessarily a bad thing? Should existing parental rights trump the best interests of the child where such parents are not unfit (because presumably, they are in the best position to know the best interests of the child)?
While I believe In re Parentage of L.B. is solid, M.F. doesn't seek to overturn it -- only narrow its finding. There is a chance that the Supreme Court might agree with this limitation. There would then be the question of whether this is discriminatory against step parents, because the remedy would continue to be available to other individuals. I will be interested to know how the court addresses this and the overall outcome.
De facto parentage cases generally raise the following questions: Should any individual at any time be able to seek court ordered visitation with a child, if such visitation is deemed to be in the child's best interests and they meet the factual requirements of a de facto parent? Or, would allowing these individuals to seek this right under these circumstances infringe upon the constitutional rights of the parent-child relationship -- and should something more be required to be shown, such as unfitness of the existing parent?
You can read the briefs both for & against online here:
81043-5 - In re the Parenting of Marnita Frazier
The concept of de facto parentage originates from In re Parentage of L.B. In In re Parentage of L.B., a nonbiological parent from a same-sex couple (who couldn't legally marry) sought visitation/custody rights to her nonbiological child. In this case, because the nonbiological mother did not adopt and the biological mother would not allow visitation, there was no other remedy. The Supreme Court ruled in favor of the non-biological parent's standing to seek visitation/custody.
There are some very convincing reasons in this modern world why the legal concept of "parent" should expand to include individuals beyond a child's biological mother and father. In this world, where single parenting is becoming common place, it is not unheard of that a third party might step in to provide care in a parental-like role. And, of course, there is the existence of same-sex couples who increasingly have children but are unable to marry. In many cases, these individuals can seek parental rights through adoption, third party custody and other legal means. In other cases, where there is a disagreement about the child's welfare and the existing legal parent is not unfit, there are no remedys available to them.
That is where de facto parentage comes in - to bridge the gap. Because regardless of how it happened, the court cannot deny that these important relationships exist. Arguably, they are important to preserve for the child's best interests, regardless of the feelings of the existing legal parent. But there is some disagreement on how broad or limited de facto parentage should be. Would allowing de facto parentage, as it currently exists, result in 3 parent families, or possibly more? And if so, is this necessarily a bad thing? Should existing parental rights trump the best interests of the child where such parents are not unfit (because presumably, they are in the best position to know the best interests of the child)?
While I believe In re Parentage of L.B. is solid, M.F. doesn't seek to overturn it -- only narrow its finding. There is a chance that the Supreme Court might agree with this limitation. There would then be the question of whether this is discriminatory against step parents, because the remedy would continue to be available to other individuals. I will be interested to know how the court addresses this and the overall outcome.
Sunday, February 8, 2009
The "Everything But Marriage Bill"
Domestic Partnership Bill Draws Fire
It's taken me awhile to write this post, just like it's taken me awhile to read all 110 pages of the actual proposed bill, but that's what I've done and the truth is, it's just hard to know where to start. I'm speaking about this on Wednesday for the ACLU of Washington's Civil Liberties 101 CLE, so in preparation from that, I have given myself a crash course in the new bill, which no one saw until just a few weeks ago.
The summary is this: it's everything but marriage, save that which would conflict with federal law. Since state laws confer 300 or so rights/obligations and federal law confers over 1000 to married couples, it's a safe bet that it probably leaves a few things out and causes a little confusion (to put it mildly). But it must be pretty good if the anti-marriage equality folks are getting involved. Well, at least 150 of them, according to the article.
Without going into detail about all the aspects of the bill just yet, I will note one thing that I found interesting: this bill would make it so you can no longer dissolve domestic partnerships nonjudicially. You have to go through the court. In contrast, the current registry allows you to dissolve the relationship nonjudicially for $50 through a fairly simple administrative procedure depending on the length of the relationship and what's at stake.
So if you are hoping for a simple dissolution of your domestic partnership, and you have no property to speak of nor children and it's all agreed- well, you're out of luck. It's going to be just as hard for you to dissolve your simple domestic partnership as if you were dissolving a marriage. Not only do you have to pay a $250 filing fee, but you have to file some complicated forms and appear for a final hearing. If you have a complicated dissolution with lots of property, you're in luck - having the procedural mechanisms available to you right away without having to go through the trouble of "proving" your quasi-marital relationship, is probably going to make your case less complicated and cost you less.
No one ever anticipates dissolving a relationship, but I think this by itself is one of the most important ramifications of the new bill from a family law perpsective, other than being "everything but marriage."
It's taken me awhile to write this post, just like it's taken me awhile to read all 110 pages of the actual proposed bill, but that's what I've done and the truth is, it's just hard to know where to start. I'm speaking about this on Wednesday for the ACLU of Washington's Civil Liberties 101 CLE, so in preparation from that, I have given myself a crash course in the new bill, which no one saw until just a few weeks ago.
The summary is this: it's everything but marriage, save that which would conflict with federal law. Since state laws confer 300 or so rights/obligations and federal law confers over 1000 to married couples, it's a safe bet that it probably leaves a few things out and causes a little confusion (to put it mildly). But it must be pretty good if the anti-marriage equality folks are getting involved. Well, at least 150 of them, according to the article.
Without going into detail about all the aspects of the bill just yet, I will note one thing that I found interesting: this bill would make it so you can no longer dissolve domestic partnerships nonjudicially. You have to go through the court. In contrast, the current registry allows you to dissolve the relationship nonjudicially for $50 through a fairly simple administrative procedure depending on the length of the relationship and what's at stake.
So if you are hoping for a simple dissolution of your domestic partnership, and you have no property to speak of nor children and it's all agreed- well, you're out of luck. It's going to be just as hard for you to dissolve your simple domestic partnership as if you were dissolving a marriage. Not only do you have to pay a $250 filing fee, but you have to file some complicated forms and appear for a final hearing. If you have a complicated dissolution with lots of property, you're in luck - having the procedural mechanisms available to you right away without having to go through the trouble of "proving" your quasi-marital relationship, is probably going to make your case less complicated and cost you less.
No one ever anticipates dissolving a relationship, but I think this by itself is one of the most important ramifications of the new bill from a family law perpsective, other than being "everything but marriage."
Monday, January 26, 2009
Irreconciliable Differences & Privacy
Entertainment mogul Redstone finalizes divorce
Every time I hear on TV that someone has filed for divorce and cited "irreconciliable differences" -- I have to be a bit amused. "Irreconciliable differences" is mandatory language in almost every divorce petition yet on Entertainment Tonight they say it like it's so unique and special to this particular celebrity -- like someone had the nerve to cite it. But everyone, when filing a divorce petition, cites "irreconciliable differences."
The Redstone divorce is a good example of how to keep your affairs out of court. Instead of contesting and putting all of your personal information in a petition, decree and findings, you have the option of executing a Separation Agreement. In most divorces, this will result in additional charges but arguably its worth the privacy. You are not required to file your Separation Agreement with the court, but your Findings and Decree are public record. Instead of detailing every piece of property and every debt in public record (as well as who gets it), you have the option of executing a Separation Agreement that keeps your affairs private. In these cases, the Decree and Findings make reference to the Separation Agreement but don't say what's in it.
There's a real benefit to this for people who are concerned about their affairs being made public.
One need only visit Washington Courts to find out the latest divorce info on Jason Mesnick (The Bachelor on ABC), Courtney Love's house foreclosure, or Kurt Cobain's probate. Luckily attorneys and powers that be have advocated for the actual documents to not be available remotely, betting that most folks wouldn't trudge to the courthouse to find court records other than those about themselves. But if you go to the courthouse, anyone can easily see the actual documents, with specific juicy details, by using Electronic Court Records. Most people don't know how easy it is to access divorce records (paternity and adoption records are kept private), but those that do -- such as the press -- tend to be the people you'd least like to know about your private financial affairs.
In the event you have even the slightest concern about your privacy, or if you have a public image to protect, it's best to do a Separation Agreement which can be confidential between the parties and on file in the safe confines of a private lawyer's office rather than on file with the court. This is something most parties can agree is a real benefit to settling short of a trial.
Every time I hear on TV that someone has filed for divorce and cited "irreconciliable differences" -- I have to be a bit amused. "Irreconciliable differences" is mandatory language in almost every divorce petition yet on Entertainment Tonight they say it like it's so unique and special to this particular celebrity -- like someone had the nerve to cite it. But everyone, when filing a divorce petition, cites "irreconciliable differences."
The Redstone divorce is a good example of how to keep your affairs out of court. Instead of contesting and putting all of your personal information in a petition, decree and findings, you have the option of executing a Separation Agreement. In most divorces, this will result in additional charges but arguably its worth the privacy. You are not required to file your Separation Agreement with the court, but your Findings and Decree are public record. Instead of detailing every piece of property and every debt in public record (as well as who gets it), you have the option of executing a Separation Agreement that keeps your affairs private. In these cases, the Decree and Findings make reference to the Separation Agreement but don't say what's in it.
There's a real benefit to this for people who are concerned about their affairs being made public.
One need only visit Washington Courts to find out the latest divorce info on Jason Mesnick (The Bachelor on ABC), Courtney Love's house foreclosure, or Kurt Cobain's probate. Luckily attorneys and powers that be have advocated for the actual documents to not be available remotely, betting that most folks wouldn't trudge to the courthouse to find court records other than those about themselves. But if you go to the courthouse, anyone can easily see the actual documents, with specific juicy details, by using Electronic Court Records. Most people don't know how easy it is to access divorce records (paternity and adoption records are kept private), but those that do -- such as the press -- tend to be the people you'd least like to know about your private financial affairs.
In the event you have even the slightest concern about your privacy, or if you have a public image to protect, it's best to do a Separation Agreement which can be confidential between the parties and on file in the safe confines of a private lawyer's office rather than on file with the court. This is something most parties can agree is a real benefit to settling short of a trial.
Saturday, November 29, 2008
Why Mediation Matters: Madonna and Guy Ritchie
Sometime earlier this year, I was asked by a journalist to give a quote on the Paul McCartney divorce. Specifically, she wanted me to talk about prenuptial agreements. After an acrimonious separation from Paul McCartney, Heather Mills was awarded a settlement of almost $50 million in March this year. There is no better lesson in prenuptial agreements than the McCartney/Mills divorce, no matter where you are, what laws you're subject to or what country you live in.
Now there's Madonna and Guy Ritchie, which is going a different direction. This is turning into a parenting case. A brief search of the Madonna/Guy divorce comes up with quite a few articles. Some of them have suggested that the financial resolution has been quick (read: there was probably a prenuptial agreement), but the parenting agreements remain outstanding. Check out these articles on the topic:
Putting kids first in divorce: lessons from Madonna and Guy
Madge on Guy's boozing, sexist traits
When it comes to parenting, for the most part: no stone goes uncovered, no secret goes unrevealed and no dirt goes unthrown, no matter how much people think it won't happen. In most cases, all the allegations, misinterpretations and purposeful exaggerations are documented in public record. Your kids are going to know about them, at some point (and hopefully you aren't the one talking about them - it will be used against you). Your friends are going to know about them. Your future girlfriends and boyfriends are going to want to look them up for screening purposes. It's important to be prepared for the worst (i.e., that's my job) but at the same time, keep it out of court, if you can possibly help it. It's better for you....and most of all, it's better for the kids.
There are many ways to do this, whether it's collaborative law (see: King County Collaborative Law), mediation or some hybrid of the two. In dissolution actions, a settlement conference is required and, if you are willing to schedule far enough ahead and don't mind not choosing your mediator, you can often get access to a volunteer settlement conference master in King County, at no charge to you. All of these mediators have 10+ years experience, and some have formerly been pro tem judges.
Some of my hardest, most contentious cases have been resolved at these volunteer settlement conferences. While it's true both parties leave usually somewhat unsatisfied, that is the sign of a good mediation. Mediation is a long term investment, not a short term solution with instant gratification. It's not about winning and losing. It's about making compromises for your kids and choosing not to engage in litigation for the rest of your life, because even if you "win", a potential modification action is only a couple years away. And if you're able to make these compromises now, there's a good chance that you'll be able to grandparent together successfully, too. That's something to think about.
Now there's Madonna and Guy Ritchie, which is going a different direction. This is turning into a parenting case. A brief search of the Madonna/Guy divorce comes up with quite a few articles. Some of them have suggested that the financial resolution has been quick (read: there was probably a prenuptial agreement), but the parenting agreements remain outstanding. Check out these articles on the topic:
Putting kids first in divorce: lessons from Madonna and Guy
Madge on Guy's boozing, sexist traits
When it comes to parenting, for the most part: no stone goes uncovered, no secret goes unrevealed and no dirt goes unthrown, no matter how much people think it won't happen. In most cases, all the allegations, misinterpretations and purposeful exaggerations are documented in public record. Your kids are going to know about them, at some point (and hopefully you aren't the one talking about them - it will be used against you). Your friends are going to know about them. Your future girlfriends and boyfriends are going to want to look them up for screening purposes. It's important to be prepared for the worst (i.e., that's my job) but at the same time, keep it out of court, if you can possibly help it. It's better for you....and most of all, it's better for the kids.
There are many ways to do this, whether it's collaborative law (see: King County Collaborative Law), mediation or some hybrid of the two. In dissolution actions, a settlement conference is required and, if you are willing to schedule far enough ahead and don't mind not choosing your mediator, you can often get access to a volunteer settlement conference master in King County, at no charge to you. All of these mediators have 10+ years experience, and some have formerly been pro tem judges.
Some of my hardest, most contentious cases have been resolved at these volunteer settlement conferences. While it's true both parties leave usually somewhat unsatisfied, that is the sign of a good mediation. Mediation is a long term investment, not a short term solution with instant gratification. It's not about winning and losing. It's about making compromises for your kids and choosing not to engage in litigation for the rest of your life, because even if you "win", a potential modification action is only a couple years away. And if you're able to make these compromises now, there's a good chance that you'll be able to grandparent together successfully, too. That's something to think about.
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