Wednesday, December 16, 2009

Connecticut Law Tribune: A Year Of Questions

legal issues to consider

Connecticut Law Tribune: A Year Of Questions

After landmark ruling, same-sex couples seek counsel of lawyers


In October 2008, same-sex couples rejoiced at the opportunity when the Connecticut Supreme Court granted them the right to marry under state law.

But more than a year and plenty of wedding ceremonies later, lawyers with practices devoted to the gay community say legal questions from their clients are a lot more complex than just saying, ‘I do.’

From family law matters to financial ones, same-sex couples are encountering legal challenges different from those faced by opposite-sex partners. After all, this is still largely uncharted territory, with still only five states allowing gays and lesbians to officially tie the knot.

“It’s been a great year in terms of watching [marriage rights] progress,” said Irene Olszewski, a Manchester attorney with a large same-sex client base. However, “a lot of people mistakenly believe that if they’re married in Connecticut, they’re recognized by every [state] as being married.”

The first same-sex marriages were performed in Connecticut in mid-November of last year. Of the 2,500 same-sex couple who have wed since then, more than half lived out of state. And while lawyers are fielding questions about how the law impacts their clients’ daily lives, those lawyers are not experiencing any boom in their practices.

Dena Castricone, who co-chairs Murtha Cullina’s gay and lesbian practice group, said the most common question she hears is whether a same-sex marriage performed in Connecticut will be recognized in another state. “That’s critically important for couples seeking legal protections without having to uproot their families” and move to Connecticut, Castricone said.

Her answer all depends on the location. New York and Washington, D.C., for example, recognize same-sex marriages from other states and countries even though they do not perform them in those jurisdictions. But most other states do not recognize same-sex partners as being married spouses.

On The Rocks

Divorces are another area where the legal protections are crucial, and those questions, too, are coming from out of state.

“Dissolutions are a nightmare if you’re in a state that doesn’t recognize gay marriage because you can’t get a divorce,” Olszewski said. “I tell clients that if you’re not going to live in a same-sex friendly state, you might want to reconsider getting married.”

Connecticut seems to be a popular destination among same-sex couples whose relationships are on the rocks. But it’s not as simple as coming to the state and getting a quick divorce, Olszewski said, because one partner must be a Connecticut resident for at least a year before the couple can file for divorce here. That’s a law that applies regardless of the gender makeup of the marriage.

Victoria T. Ferrara, a Fairfield family law attorney, said once the one-year threshold is met, there are protections for divorcing couples. Before same-sex marriage was legalized in Connecticut, “it was much more problematic for couples to get out of relationships and it was very difficult to establish rights of property distribution,” Ferrara said. “[A partner] could be left with nothing after putting a lot of money and energy in the relationship and couples’ property” because Connecticut or their home state didn’t recognize the couple as married.

A legal wrinkle that could emerge involves the hypothetical couple that has been together for 10 or 15 years but has been legally married for a shorter period of time.

“It’s a challenge for people whether they can go back that long to claim assets,” Ferrara said. “Are they entitled to assets dating the length of the relationship or the length of the recognized marriage?”

Federal Benefits

One of the more common questions attorneys receive from same-sex couples involves federal benefits, such as Social Security, and whether spouses are eligible to receive their partner’s benefits upon death.

Right now, they can’t. But a lawsuit filed in Massachusetts by the Gay and Lesbian Advocates and Defenders (GLAD)—a Boston-based group that was instrumental in litigating Connecticut’s landmark Kerrigan v. Commissioner of Pubic Health —is looking to change that by alleging that the Defense of Marriage Act is unconstitutional because it refuses to recognize same-sex marriages.

Same-sex couples have been asking Day Pitney trusts and estates partner Brad Gallant what marriage would mean to them from a financial standpoint, and many are waiting for what they hope is a GLAD victory in court.

“When it happens that federal benefits and federal estate tax deductions become available, I’ve had clients say [that’s when] they will get married,” Gallant said. Along with Social Security benefits, same-sex couples also cannot yet take advantage of essentially tax-free property transfers between spouses.

“In terms of the emotional and psychological impact [of legalized same-sex marriage], it’s huge,” Gallant noted. “But until the state of [the Defense of Marriage Act] is resolved, the effect of same-sex marriage on estate and tax planning is relatively modest.”

Bennett Klein, the senior attorney at GLAD, said questions and concerns about federal benefits are the most common comments coming out of this state. “We’re not hearing about any [other] problems arising from Connecticut law,” Klein said.

Breaking the news that federal benefits don’t apply to same-sex couples “are the most disheartening phone calls I have to take,” said Olszewski, the Manchester lawyer.

And just to be on the safe side, she’s telling couples to continue to carry the same types of documents when they travel out of state as they did before they were legally married. These include a hospital visitation form so that a same-sex partner won’t be barred from a hospital room in a state that doesn’t recognize him or her as a family member.

But it’s not all about divorces and debates over federal benefits. The legalization of same-sex marriage in the state likely will lead to more adoption work, Olszewski said. She normally facilitates 20 to 25 adoptions per year for same-sex couples, and they usually involve a partner seeking joint custody along with the child’s biological mother.

All couples must live in Connecticut for a year before they can adopt a child here. Olszewski is working with three same-sex couples who have moved to Connecticut to benefit from its laws.

“They have moved to Connecticut because they intend to marry and adopt and they feel that it’s important to protect the child” with laws that legally recognize them as a family, Olszewski said. “It’s a nice time to be an attorney for same-sex couples. It’s nice that we don’t have the restraints that we had before.” •

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