a legal guide for lesbian and gay couples 11th (2002)

Alabama Heterosexual and homosexual sodomy illegal, except for married couples 1 year Alaska No sodomy law Arizona No sodomy law Arkansas Sodomy law invalidated by lower court currently

A Legal Guide for

Lesbian and Gay Couples

by Attorneys Hayden Curry, Denis Clifford and Frederick Hertz

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pub-A Legal Guide for

Lesbian and Gay Couples

by Attorneys Hayden Curry, Denis Clifford and Frederick Hertz

tain major legal changes, major text additions or major reorganizations To find out if alater printing or edition of any Nolo book is available, call Nolo at 510-549-1976 orcheck our website at http://www.nolo.com.

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Eleventh Edition MARCH 2002

Editor BETH MCKENNA Illustrations LINDA ALLISON Cover Design TONI IHARA Production SARAH HINMAN Book Design TERRI HEARSH Proofreading ROBERT WELLS Index THÉRÈSE SHERE Printing BERTELSMANN SERVICES, INC.

Curry, Hayden

A legal guide for lesbian and gay couples / by Hayden Curry, Denis Clifford, and

Frederick Hertz 11th ed.

1 Gay couples Legal status, laws, etc. United States 2 Lesbian couples Legal

status, laws, etc. United States 3 Same-sex marriage Law and legislation United

States I Clifford, Denis II Hertz, Frederick III A legal guide for lesbian and gay

couples IV Title.

KF539.L44 2002

All Rights Reserved Printed in the U.S.A Copyright © 1980, 1984, 1985, 1986, 1989 and 1991 by Hayden Curry and Denis Clifford Copyright © 1993, 1994 and 1996 by Denis Clifford and Nolo Copyright © 1999, 2002 by Denis Clifford, Frederick Hertz and Nolo.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the publisher and the authors Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use Quantity sales: For information on bulk purchases or corporate premium sales, please contact the Special Sales department.

people who read and critiqued the original manuscript back in 1980: Roberta berg, Gloria Bosque, Kay Clifford (Mom), Jim Duerr, Patrick Ferruccio, Michael Fuchs,Linda Graham, Pamela Gray, Linda Gryczan, Linda Guthrie, Donna J Hitchens, Floyd S.Irvin, Keith Kelgman, Phyllis Lyon, Terri Lyons, Mary Morgan, Joseph Nieberding, ZonaSage, Sue Saperstein, Kim Storch and Michael Thistel.

Achten-For keeping the book up-to-date in the 1990s and beyond, thanks go to Nolo editorsShae Irving, Barbara Kate Repa and Beth McKenna, Nolo editorial assistant Stan

Jacobsen for his cite checking and other research, and Oakland, California, lawyerRachel Ginsburg, for her help with the parenting information

Special thanks to Emily Doskow of Oakland, California, and Kate Kendell, ExecutiveDirector of the National Center for Lesbian Rights, for their insights and assistance re-garding the recent developments involving the children of lesbian and gay parents

We would also like to thank Stefen Johnson of Lambda Legal Defense and EducationFund, Los Angeles

About the Authors

Introduction

A Lesbians, Gay Men and “The Law” I/2

B Some Words About Words I/6

C Using the Forms in This Book I/6

D Icons Used in This Book I/7

A Same-Sex Marriage 1/2

B Domestic Partnerships 1/7

C Other Gains for Gay and Lesbian Families 1/9

D Adult Adoption—Another Way to Cement a Relationship 1/10

E The Sad Side of “Marriage” 1/11

A Can I Take My Lover’s Last Name? 2/3

B Renting an Apartment or House Together 2/4

C Will I Lose My Public Benefits If My Lover Moves in With Me? 2/10

D Cash and Credit 2/11

E Insurance 2/16

F Can My Foreign Lover Come Visit or Live With Me? 2/19

B Protections for “Unrecognized” Co-Parents 3/5

C Having Your Own Child 3/11

D Adopting a Child 3/21

E Foster Parenting a Child 3/25

F Becoming a Guardian of a Child 3/27

G Arrangements Between a Teenager and the Adults Who’ll Care for the Teen 3/30

A Healthcare Decisions 4/4

B Physician-Assisted Suicide 4/9

C Burial and Body Disposition 4/10

D Estate Planning Note 4/11

E Durable Power of Attorney for Finances 4/12

A Reflections on the Death of a Mate 5/3

B Death and Living Together Contracts 5/4

C Wills 5/4

D Estate Planning Beyond a Will 5/17

A Living Together Contracts Are Legal 6/2

B When You Need a Living Together Contract 6/4

C What to Include in a Living Together Contract 6/4

D Sample Living Together Contracts 6/7

E Modifying Your Agreement 6/23

A Finding a House 7/3

B How Much House Can You Afford? 7/5

C Proceeding With Your Purchase 7/9

D Taking Title to Your New Home 7/12

E Contracts for People Buying or Owning Homes Together 7/13

A A Good Divorce—As Precious As a Good Marriage 8/2

B Child Custody 8/7

C Visitation of Children 8/13

D Child Support 8/13

E After the Divorce 8/15

A Rules of the Game—Married and Unmarried 9/2

B Stages of Separation 9/5

C Particular Solutions for Particular Problems 9/13

D A Few Final Words 9/20

A Hiring a Lawyer 10/2

B Doing Your Own Research 10/4

C Lesbian, Gay and AIDS-Related Legal Referrals 10/6

Index

First Edition

A Legal Guide for Lesbian and Gay Couples was first

published in 1980 At that time, Hayden Curry and

Denis Clifford were partners in the Oakland,

Cali-fornia, law firm of Clifford, Curry and Cherrin They

had met in 1967, in a special training program for

recent law school graduates going into poverty law,

and later worked together for several years in a

neighborhood legal services office in East Oakland

They proudly introduced themselves in the first

edition of the book with the following personal

statement:

“We’ve been close personal friends for almost two

decades Hayden is gay and has lived with his

lover for many years Denis is straight We

men-tion this because people are curious and we want

to get it out and out of the way For those of you

who are interested, we speak a little more about

who we are—and our friendship—in the About

the Authors section at the beginning of this book.

“Because this book is designed for lesbians as

well as gay men, we felt a special responsibility

to seek out the advice, experience and resources

of the lesbian community, especially the lesbian

legal community We didn’t want to presume

knowledge of their experiences Obviously, there

are many similar experiences in being a lesbian

and being a gay man (calling a lesbian a ‘Dyke’

and calling a gay man a ‘Faggot’ hurt in much

the same way) The law, too, treats the two

com-munities as one But aside from the anatomical, there are many differences between lesbians and gay men One major difference is economic As Phyllis Lyon, a lesbian activist in San Francisco, pointed out to us, gay men, on the average, make considerably more money than lesbians, who, as women, make between 65 and 70 cents (nationwide) for every $1.00 men make Where appropriate, we discuss other important differ- ences in the text We want to thank the many lesbian women who helped us to assemble these materials They provided information and en- couragement, assisted with defining issues and problems, and helped scrutinize the manuscript from its initial draft to the finished product And beyond all that, we made new friends.”

In the About the Author section they referred to

in their personal statement, Hayden and Denis scribed how they came to write this book:

de-“We feel this book has evolved from our earlier work with the civil rights movement and poverty law One of the strongest conclusions we drew from our years of bringing ‘test cases’ for the rights of poor people was that the established (or establishment) legal system was cumbersome, and generally unsympathetic to minorities We came to believe that preventative law—people creating their own legal arrangements and avoiding courts and lawyers—was both emi- nently sensible and long overdue.

(A little bit of history)

“It’s ironic, but true, that while laboring in

South Florida for the rights of the economically

oppressed and racial minorities, Hayden was

simultaneously suppressing his own awareness of

himself as an oppressed minority—a gay man It

was necessary for him to reach the healthier and

more supportive climate in Northern California

before he could begin the process of publicly

coming to terms with his identity, and be able to

work overtly for his own minority group Denis

has been an observer and supporter of Hayden’s

coming-out process (and he hasn’t exactly been

standing still the last twenty-some years either).

“After leaving legal services, we set up our

private law practice, which has served many

les-bian and gay clients Our belief that litigation

and courts should be the last resort for

problem-solving was reaffirmed by our clients’

experi-ences; we began helping them devise ways to

solve their problems outside traditional (and

ex-pensive) legal remedies.

“Writing this book has been a shared

experi-ence We’ve both learned a lot We don’t believe

people are confined to understanding only those

who have the same sexual identity as they do.

One of the beauties of being free is that people can

learn, as we have, that our differences can bring

us closer We hope this book will do that for many

lesbian/gay couples, and it was in this spirit of

optimism that we worked and wrote together.”

Fifth Edition

As Hayden and Denis revised and updated this book

for the fifth edition in early 1989, they contemplated

the changes in the lesbian and gay community over

the previous nine years In describing themselves,

they wrote: “Hayden has a great many more

wrinkles than he had nine years ago; he got them

the old-fashioned way, he earned them And Denis

has worry lines too Although, we must say, growing

older seems like a rather fine alternative these days.”

Hayden, unaware that the AIDS virus lived insidehim, wrote about the disease’s effect on the lesbianand gay community in the special introduction tothe fifth edition

“The tragedy of AIDS continues In February, we buried our good friend Dan Bradley Dan’s story

is similar to many of ours When we worked with him in legal services in the late ’60s and early ’70s we didn’t know the torments he was going through discovering his homosexuality By the late ’70s, when the cultural and political cli- mate had become positive, Dan, in true Bradley fashion, burst out of his closet with an an- nouncement in the New York Times—‘High Government Official Announces He Is Gay.’ In the early and hopeful ’80s, Dan became a na- tional gay rights leader But his true heroism came after he was diagnosed with AIDS Rather than retreat into his illness, he used the small energy he had to fight for the rights of people with AIDS and ARC Now Hayden has made Dan’s quilt for the Names Project; Hayden’s mother did the needlepointing.

“We’ve lost many wonderful friends and many more are ill The political right has used AIDS to fan hatred and discrimination against

us Much of our time is spent caring for our brothers, and our political energies are sapped

by health care and survival issues.

“There’s another side to this tragedy We’ve matured as a group We’ve coalesced as a com- munity We’re vastly proud of the compassion

we, men and women, have shown each other, and the organizations we’ve built.

“We’ve set up many programs to care for our community And the lesbian community has shown deep concern, caring and commitment We’ve created our own memorial: the Names Project, where the friends of someone who died due to the virus stitch a 3' x 6' quilt for that per- son The individual quilts are woven together into a beautiful and powerful expression of love and grief.

“We’ve proven ourselves a proud, caring and

dedicated clan We’re exhausted We’re sad.

We’ll do what’s needed of us.”

Sixth Edition

Hayden Curry died on September 30, 1991, from

AIDS Denis Clifford wrote the following memorial

to Hayden, which first appeared in the sixth edition

of A Legal Guide for Lesbian and Gay Couples:

“I first met Hayden in 1967, when we were both

in a special training program for poverty

law-yers Right away, I was taken with his flair and

zest for life After two years working with

mi-grant workers in rural Florida, Hayden moved

to California in 1969 For five years we worked

together in a legal services office in East

Oak-land, California We were both East Coast

refu-gees—he’d gone to Yale, then University of

Vir-ginia law school We became best friends After

we left legal services, we were law partners for

several years We remained very close until his

death.

“Hayden and I shared many wonderful

ad-ventures He was a seeker, adventurer,

philoso-pher and bon vivant He was a good friend of

many in the Nolo family, in whose hearts he will

always be smiling.

“The following is from Hayden’s obituary:

‘Hayden was a proud participant in gay life

in the Bay Area Living in what he termed the

‘supportive climate’ of Northern California, he

publicly presented himself as gay in the early

1970s Fully accepting himself, he opened his

loving heart and flamboyant spirit to his many,

many friends… Hayden became seriously ill in

March of 1991 He bore his afflictions with such

grace and courage that he truly transcended his

disease, becoming increasingly luminous in

spirit until his death.’

“His premature death is a tragedy He will be

missed.”

Seventh Edition

With the publication of the seventh edition of A

Le-gal Guide for Lesbian and Gay Couples in 1993,

Robin Leonard was added as an author Robin hasbeen an active member of whatever lesbian and gaycommunity she’s lived in since the late 1970s Shecame to Nolo in 1985 after practicing law in SanFrancisco, and was the editor of the fifth and sixtheditions of this book

Robin and Denis worked together updating thematerial to reflect the new direction in which thelesbian and gay community was going AlthoughAIDS continued to take its tragic toll, the 1990s be-gan the era in which lesbians and gay men got mar-ried (even though the law didn’t recognize it), regis-tered as domestic partners, challenged traditionallimits on the definition of family and continued tohave a lot of kids

Robin and Denis made a commitment to makingHayden’s voice and spirit come through in theirwords And, beginning with the seventh edition,

they dedicated A Legal Guide for Lesbian and Gay

Couples to Hayden’s memory.

Panel and is the author of Legal Affairs: Essential

Advice for Same-Sex Couples (Owl Books) Fred

lives in the Bay Area with his partner, and has beenactive in the lesbian and gay legal community formore than 15 years Fred was a friend and col-league of Hayden’s, which does much to ensurethat Hayden’s spirit lives on in the book.You cancontact Fred through his website, at http://

www.samesexlaw.com.■

A Lesbians, Gay Men and “The Law” I/2

B Some Words About Words I/6

C Using the Forms in This Book 1/6

D Icons Used in This Book I/7

This book is designed to help lesbian and gay

couples understand the laws that affect them

and take charge of the legal aspects of their

lives Much of the material covered can also be very

useful for lesbians and gays who aren’t in a couple

Many of the legal consequences of “coupling”

are immediately apparent, but many others don’t

surface until times of stress—misunderstandings,

separation or death Married couples’ relationships

are closely regulated by each state’s family law

rules; lesbian and gay couples can’t legally marry,

so except under Vermont’s civil union statute, our

relationships are structured under the far looser—

and less appropriate—rules of contract law This

discrimination can mean, among other things,

higher estate tax rates and insurance payments, the

unavailability of marriage discount prices or

mem-berships and significant obstacles in adopting But it

also allows lesbian and gay couples the freedom to

create their own legal relationships

This is an optimistic book Our purpose is to

explain your legal alternatives and show you how

to use them to contribute to a harmonious and

pro-ductive life together We feel strongly that

discuss-ing and planndiscuss-ing the financial, practical and legal

aspects of a relationship leads to greater

understand-ing and trust It’s possible to use the law in a

posi-tive, conflict-avoiding way Unfortunately, however,

there’s also a less happy theme to this

book—fail-ure to work out your legal relationship with each

other can lead to surprising, and dire, consequences

We’ve heard too many horror stories not to warn you

This is also a practical book We supply sample

form legal documents such as living together

agree-ments, wills, parenting agreements and the like so

you can design and prepare your own documents

We focus on the nitty-gritty of daily life; we spend

little time discussing broader political concerns,

such as the essential struggle of lesbians and gays

to remove prejudice from the laws and culture of

America One of the happiest results of this struggle

is that it is now matter-of-fact that many thousands

of lesbians and gay men live together as couples in

pursuit of life, liberty and happiness

This doesn’t mean that the political work is

over—it obviously isn’t—but that our focus is on

the personal and not the political Certainly you’ll

find evidence of our anger toward, and frustrationwith, a society that has made being lesbian or gay

so difficult The AIDS crisis has led to increased pression and the increased need for prudence Andthe information we provide is especially essential ifyou haven’t told your family, friends or the worldabout your relationship and sexual orientation

op-A Lesbians, Gay Men and

“The Law”

Most lesbian and gay people we know are wary of

“the law,” even if they’re lawyers themselves, and forgood reason For eons, the law has been a force foroppression The litany of codified homophobia in-cludes sodomy laws, loitering laws, exclusion fromthe military, prohibitions against child custody—thelist goes on and on In addition, the law has permit-ted—and in some cases even encouraged—manyother types of oppression, such as job and housingdiscrimination and police entrapment Obviously, alegal system that makes people criminals because ofsexual orientation doesn’t engender trust

In 1986, the U.S Supreme Court upheld the stitutionality of enforcing Georgia’s sodomy statute

con-against gay men (Bowers v Hardwick, 478 U.S 186

(1986)) But states are free to offer their citizensmore protection than is given by the federal consti-tution, and in fact, the Georgia Supreme Court hassince ruled that state’s sodomy law illegal under theGeorgia constitution This means that whether ornot it’s legal for you to have sex with your lover de-pends on where you live Sixteen states still haveenforceable laws against private, consensual sod-omy—sometimes heterosexual and homosexual,sometimes just homosexual And though states withsodomy laws on the books don’t necessarily pros-ecute people for having sex, those laws can poten-tially used to negate contracts between sexual part-ners because the relationship is an “illegal” one.Below is a summary of state sodomy laws—tofind out about any changes, check the website ofthe National Gay and Lesbian Task Force, at http://www.ngltf.org, or the ACLU’s website, at http://www.aclu.org

Alabama Heterosexual and homosexual sodomy illegal, except for married couples 1 year

Alaska No sodomy law

Arizona No sodomy law

Arkansas Sodomy law invalidated by lower court (currently on appeal)

California No sodomy law

Colorado No sodomy law

Connecticut No sodomy law

Delaware No sodomy law

District of Columbia No sodomy law

Florida Heterosexual and homosexual sodomy illegal 60 days Georgia No sodomy law

Hawaii No sodomy law

Idaho Heterosexual and homosexual sodomy illegal Life

Illinois No sodomy law

Indiana No sodomy law

Iowa No sodomy law

Kansas Homosexual sodomy illegal 6 months Kentucky No sodomy law

Louisiana Heterosexual and homosexual sodomy illegal 5 years Maine No sodomy law

Maryland No sodomy law

Massachusetts Heterosexual and homosexual sodomy illegal 20 years Michigan Heterosexual and homosexual sodomy illegal 15 years Minnesota Heterosexual and homosexual sodomy illegal 1 year

Mississippi Heterosexual and homosexual sodomy illegal 10 years Missouri Homosexual sodomy illegal 1 year

Montana No sodomy law

Nebraska No sodomy law

Nevada No sodomy law

New Hampshire No sodomy law

New Jersey No sodomy law

New Mexico No sodomy law

New York No sodomy law

North Carolina Heterosexual and homosexual sodomy illegal 10 years

North Dakota No sodomy law

Ohio No sodomy law

Oklahoma Homosexual sodomy illegal 10 years

Oregon No sodomy law

Pennsylvania No sodomy law

Rhode Island No sodomy law

South Carolina Heterosexual and homosexual sodomy illegal 5 years

South Dakota No sodomy law

Tennessee No sodomy law

Texas Homosexual sodomy illegal $500 fine

Utah Heterosexual and homosexual sodomy illegal 6 months

Vermont No sodomy law

Virginia Heterosexual and homosexual sodomy illegal 5 years

Washington No sodomy law

West Virginia No sodomy law

Wisconsin No sodomy law

Wyoming No sodomy law

Sodomy laws aren’t the only manifestation of a

legal system that continues to discriminate against

lesbians and gay men Although our legal system

generally does a good job of protecting certain

free-doms, like freedom of speech, even here the rights

of lesbians and gay men have taken a back seat to

judicial homophobia In 1987, the U.S Supreme

Court ruled that Congress and the U.S Olympic

Committee can control the use of the word

“Olym-pics” by denying San Francisco Arts and Athletics,

Inc., the use of the phrase “Gay Olympics” to

de-scribe their every-four-years international athletic

competition

Entering a new century gives us pause to reflect

on the many gains, losses and near misses ebrated and suffered by the lesbian and gay com-munity Former President Clinton appointed morethan 100 lesbians and gay men to top administrativepositions, but supported the ban on gays in themilitary Television shows and movies now featureopenly gay characters And the United States Su-preme Court has recognized our basic civil rights byinvalidating the homophobic Amendment 2 in Colo-rado At the same time, however, anti-gay legisla-tion is repeatedly proposed—and enacted—acrossthe country Furthermore, violence against lesbians

cel-and gays—most vividly demonstrated in the murder

of Matthew Shepard of Wyoming—continues to

flourish

For those fighting to protect the rights of

same-sex couples, the new century brings great cause for

celebration, because the state of Vermont has

passed legislation allowing same-sex couples to be

accorded the same rights, privileges and

responsi-bilities as straight married couples After the

Ver-mont Supreme Court found that denying gay and

lesbian couples the right to marry was

unconstitu-tional, the state passed a law allowing same-sex

couples to register as a “civil union.” Once

regis-tered, a couple is subject to the same laws that

gov-ern married couples, including laws relating to

pub-lic benefits, inheritance, child custody and support,

medical decisions and division of property when a

couple splits up

For more information about Vermont civil

unions, and the status of same sex marriage

in America, see Chapter One, Section A.

One of the consequences of our homophobic

laws is that lesbian and gay couples in America

can-not legally marry, no matter how deep their love and

how firm their commitment Lesbian and gay couples

are also denied the many legal rights that come with

marriage (Vermont couples who have registered as

a “civil union” have most of the state law marriage

protections, but none of the federal ones.) These

rights include the rights to:

• file joint income tax returns

• claim estate tax marital deduction

• claim family partnership tax income

• recover damages based on injury to your

lover

• receive survivor’s benefits

• enter hospitals, jails and other places

re-stricted to “immediate family”

• obtain health insurance, dental insurance,

be-reavement leave and other employment

ben-efits

• collect unemployment benefits if you quityour job to move with your lover to a newlocation because he or she has obtained anew job

• get residency status for a noncitizen spouse toavoid deportation

• automatically make medical decisions in theevent your lover is injured or incapacitated(otherwise, parents, adult children or siblingsare given the right), and

• automatically inherit your lover’s property inthe event he or she dies without a will (other-wise, it goes to parents, children and sib-lings)

We are mistrustful of our legal system for other reason The law tends to be cumbersome,time-consuming, expensive and incredibly picky Asyou’ll see throughout this book, we urge you toavoid courts and litigation if at all possible Butavoiding lawsuits doesn’t mean you can avoid thelegal system altogether The fact that lesbian andgay couples are no longer in the closet and live to-gether openly necessarily brings them into contactwith the law This is especially true if the couple, orone or both individually, have children or signifi-cant amounts of money or property

an-We’re often asked such questions as, “Is it sible for a court to remove my child from my homebecause I live with my lover?” “If I die, can mylover inherit my car and my house?” “Can a hospitallegally prevent me from visiting my lover in inten-sive care?” We answer these specific questions later

pos-in the book What we can tell you generally, ever, is that the opportunities for legal hassles tointrude into a couple’s life are endless, and the bestway to avoid entanglements with the law is to takematters into your own hands In this book, we giveyou the information necessary to create legal docu-ments to give yourselves many of the rights whichaccompany marriage

how-B Some Words About Words

Wouldn’t it be great if there were a genie who

cre-ated words for such realities as “a man who loves

men” or “a woman who loves women” or

“com-rades through life who share sexual intimacies” that

meant exactly what we wished them to mean,

nei-ther more nor less? These words would be free of

latent sexual prejudice and orientation, and their

meaning and political acceptability wouldn’t erode

over time Unfortunately, the opposite has been

more the case, as words have been part of the

per-petuation of homophobia “Faggot,” for instance, is

derived from the French word for the bundles of

sticks used to burn homosexuals at the stake, and

its use should serve as a reminder of that

oppres-sion As Truman Capote said, “A fag is a

homo-sexual gentleman who has left the room.”

Words free of ugly overtones, which accurately

(to say nothing of poetically) describe the realities

we discuss in this book aren’t easy to find What do

you call the person you live with? “Co-vivant” does

have a delightful French ring to it, but seems more

than slightly pretentious “Living in bedlock without

benefit of wedlock” is silly, but at least it rhymes

How about “consort” or “URAW,” a welfare

depart-ment term for a person living with an “unrelated

adult woman” (URAM, for men)

“Lover” and “partner” are the words we use

They are accurate and succinct We also use the

words “lesbian” and “gay” because those are the

words used most often in our own particular culture

(San Francisco Bay Area) by women and men to

identify themselves As for general pronouns,

some-times we use “she,” somesome-times “he” and somesome-times

the awkward “he or she.”

Transgendered people often find themselves in

particularly complex legal situations Oftentimes

their birth certificates, driver’s licenses and other

identification documents create confusion and

un-certainty Their legal rights and duties with respect

to their unmarried partners, however, are the same

as those who are lesbian, gay or bisexual For thisreason, the issues raised by this book for the mostpart apply to the transgendered members of ourcommunity, and we certainly mean to includetransgendered persons in our audience

We know that creating and using words tainted by the prejudices of the past and reflective

un-of pride and self-worth is important, so we’ve tried

to be sensitive to the power and implication ofwords But finally, words are just that—words; theywon’t break our bones, and we’re all free to use theones we like best When Christopher Isherwoodwas asked what he liked to be called, he answered,

“I don’t really like the word ‘gay’ for it makes usseem like silly ninnies I rather like the karate chopsound of ‘faggot.’ The word ‘homosexual’ is toomuch of a mouthful Frankly, when alone and withfriends, I say ‘queer.’”

C Using the Forms in This Book

Sprinkled throughout this book are sample ments, covering such topics such as living together,raising children, buying a home together and(sadly) splitting up As you will see, each of theseagreements is personalized to the individualized cir-cumstances of the actors involved We encourageyou to use our sample agreements as starting pointsfor your own documents We suggest that you type

agree-up your agreements on your computer, and use thelanguage and structure from the agreements in-cluded in this book as they fit your needs If itwould make you more comfortable to have a law-yer draft your documents, by all means do so As acheaper alternative, you can instead have a lawyerreview the documents that you write yourselves (al-though not every lawyer will be willing to performthis service)

D Icons Used in This Book

A caution icon warns you of a potential

problem.

This icon refers you to other books or

resources for further information.

The tip icon gives you hints on dealing

with special situations.

The briefcase lets you know when you

need the advice of an attorney.

Related topics covered in this book.

■

Creating Family:

Marriage, Domestic Partners and More

A Same-Sex Marriage 1/2

1 The Ongoing Fight for Same-Sex Marriage 1/3

2 If You Could Marry, How Would It Affect You? 1/6

B Domestic Partnerships 1/7

C Other Gains for Gay and Lesbian Families 1/9

1 Government Benefits 1/9

2 Defining “Family” 1/9

D Adult Adoption—Another Way to Cement a Relationship 1/10

E The Sad Side of “Marriage” 1/11

1 Breaking Up 1/11

2 When Relationships Turn Violent 1/12

1

According to Webster’s New Collegiate Dictionary,

a family is “the basic unit in society having

as its nucleus two or more adults living

to-gether and cooperating in the care and rearing of

their own or adopted children.” Despite this

all-in-clusive definition, a lesbian or gay couple—with or

without children—is hardly the image conjured up

when most people picture a family

Nevertheless, lesbian and gay couples consider

themselves to be families And over the past several

decades, same-sex couples have sought societal

rec-ognition of their families It began in the early

1970s, when lesbian and gay couples applied for

marriage licenses, asked courts to allow one partner

to adopt the other and took other steps to legally

cement their relationship Most of these efforts

failed

By the mid-1980s, the emphasis changed to

seeking “domestic partnership” recognition for

same-sex couples from both municipalities and

pri-vate companies This effort continued, with

increas-ing strength, in the 1990s And the desire to marry

has again emerged Some couples are applying to

the state for marriage licenses and suing their states

when their requests are denied Others (many

oth-ers) are participating in their own ceremonies,

sanc-tioned by their friends, families and spiritual

com-munities And in Vermont, same-sex couples can

register as a civil union, and be subject to the same

state laws that govern married couples

In this chapter, we discuss:

• gay and lesbian marriages

• domestic partnerships

• states granting benefits (such as

unemploy-ment insurance) to partners in lesbian and

gay couples where previously only married

spouses were given those benefits

• case law expanding the definition of “family,”

and

• adult adoptions

The debate over same-sex marriage has

pro-foundly transformed the lesbian and gay

commu-nity For many, the right to marry is a basic civil

right—as long as lesbians and gay men are denied

the right to marry their lovers, they will be

consid-ered second-class citizens And as long as societyoffers benefits based on the status of marriage, thenlesbian and gay couples want their fair share Thebattle to bestow greater legitimacy on our relation-ship is also changing the way each of us thinks ofour relationship with our partner More and morecouples are pooling their assets and formalizingtheir interdependency on each other, living moreand more how married couples do And an increas-ing number of partners are seeking post-dissolutionfinancial support or a share of joint assets from theirexes upon the termination of their relationships

To others—especially many lesbian feminists—marriage is a sexist and patriarchal institution that les-bians and gay men should not seek to be a part of

We find this debate to be intellectually and litically fascinating (and we certainly have our opin-ions about lesbians and gay men seeking the right

po-to marry), but we have decided po-to keep our ownopinions out of print We include information onlesbian and gay marriages because any “LegalGuide for Lesbian and Gay Couples” should include

it, and because many readers have asked for it

A Same-Sex Marriage

In 1978, the United States Supreme Court declaredmarriage to be “of fundamental importance to all

individuals” (Zablocki v Redhail) The court

de-scribed marriage as “one of the ‘basic civil rights ofman’” and “the most important relation in life.” Thecourt also noted that “the right to marry is part ofthe fundamental ‘right to privacy’” in the U.S Con-stitution

Although marriage has been declared a mental right, no state yet recognizes same-sex mar-riages Some states have passed laws specificallybarring same-sex marriages, and the number ofstates with such laws are increasing And evenstates without an explicit “no-same-sex-marriage”law on the books do not allow same-sex couples toenter into legal marriage

funda-Despite all this, however, there is some good

news to report

1 The Ongoing Fight for Same-Sex

Marriage

Gay and lesbian couples have been fighting for

le-gal marriage in this country for decades As early as

1971, a gay male Minnesota couple filed a court

case claiming that they were entitled to legally

marry under the state’s marriage statute That case

was unsuccessful, but the fight continued through

the 1980s and 1990s, culminating in two landmark

cases: the Hawaii case of Baehr v Miike, and the

Vermont case of Baker v State.

In the Hawaii case, three same-sex couples sued

the state, arguing that its failure to issue marriage

licenses to them violated the Equal Rights

Amend-ment to the state constitution The Hawaii Supreme

Court—while not explicitly finding in favor of

same-sex marriage—ruled that the couples’ lawsuit raised

legitimate gender-discrimination concerns under the

state constitution, and sent the case back to lower

court After a trial in the lower court, that judge

ruled that same-sex marriage ban was invalid The

state appealed While that appeal was pending,

Ha-waii voters passed a constitutional amendment

ban-ning same sex marriage This new law effectively

ended the case

Although in the end Hawaii did not permit

same-sex marriage, when the case was pending the

“threat” of legalized gay marriage was in the air

The furor unleashed by the Hawaii case caused

many state legislators to pass laws banning

same-sex marriage The federal government also got

caught up in the hysteria, passing the “Defense of

Marriage Act” (DOMA) in 1996 The DOMA

prohib-its the federal government from recognizing

same-sex marriages or denies federal benefits (such as

income tax, immigration and Social Security) to

spouses in same-sex marriages Furthermore, in

an-ticipation of a time when some forward-thinking

state might allow full legal marriage for a same-sex

couple, The DOMA permits states to ignore a

same-sex marriage entered into in another state

Hawaii’s Compromise: The Reciprocal

Beneficiaries Law

In an effort to prevent Hawaii courts from lowing same-sex marriage, the state legislaturepassed the Reciprocal Beneficiaries Law of

al-1997 Couples who sign up as reciprocal eficiaries gain many of the rights and benefitsgranted by the state to married couples Al-though not quite the victory that the same-sexmarriage movement had hoped for, it was stillgroundbreaking because it was the first state-wide domestic partnership law passed in theUnited States (For more on domestic partner-ships, see Section B.)

ben-Any two individuals over the age of 18 whoare not permitted to marry under Hawaii laware eligible to register with the state as recipro-cal beneficiaries Rights and benefits extended

to reciprocal beneficiaries include hospital tation rights, the ability to sue for wrongfuldeath and property and inheritance rights simi-lar to those enjoyed by married couples Un-like couples registered under Vermont’s civilunion law (see below), reciprocal beneficiaries

visi-in Hawaii are not granted access to familycourt—which governs issues like divorce, ali-mony and child support for married couples.The website of Hawaii’s Vital Records Of-fice has information about how to register asreciprocal beneficiaries, at http://

www.state.hi.us/doh/records/rbrfaq.htm

Across the county in Vermont, the state supreme

court issued a landmark decision in Baker v State

(1999) The Vermont Supreme Court ruled that hibiting same-sex marriage violated the Vermontconstitution because it denied same-sex couples therights granted straight couples But instead of order-ing the government to issue marriage licenses togay and lesbian couples, the court left it up to thestate legislature to remedy the situation

pro-In response to the court’s order in Baker v State,

the legislature passed a law creating the civil union

registration system Under this system, same-sex

couples can register their civil union, and they are

then subject to all state laws applying to married

couples (For more details, see the box “The

Ver-mont Civil Union Law” below.)

It is too soon to tell what effect of the Vermont

civil union statute will have on the nation The

stat-ute allows couples who aren’t Vermont residents to

register their civil union, but it is doubtful that other

states will recognize their status Although the

fed-eral constitution requires each state to give “full

faith and credit” to the laws of other states—such

that a heterosexual marriage or divorce in one state

is recognized in another—the federal Defense of

Marriage Act (DOMA) was passed with the express

purpose of undercutting that guarantee in the case

of same-sex marriages At the same time, because

the DOMA abridges the rights guaranteed under the

full faith and credit clause it seems ripe for a

consti-tutional challenge

The recent years have been marked by a rapid

succession of victories and disappointments in the

fight to legalize same-sex marriage The best we can

tell you at this point is: “Stay tuned.” And you can

always check the website of the Lambda Legal

De-fense and Education Fund’s Marriage Project for the

latest news, at http://www.lambdalegal.org

The Vermont Civil Union Law

In 1999, the Vermont legislature passed theVermont Civil Union law, which went into ef-fect on July 1, 2000 While this law doesn’t le-galize same-sex marriages, it does provide gayand lesbian couples with many of the sameadvantages including:

• use of family laws such as annulment, vorce, child custody, child support, ali-mony, domestic violence, adoption andproperty division

di-• the right to sue for wrongful death, loss ofconsortium and any other tort or law re-lated to spousal relationships

• medical rights such as hospital visitation,notification and durable power of attorney

• family leave benefits

• joint state tax filing, and

• property inheritance without a will

These rights apply only to couples residing

in Vermont Even for Vermont residents, thisnew civil union law does not provide same-sexcouples with rights and benefits provided byfederal law; for example, same-sex couplescannot take advantage of Social Security ben-efits, immigration privileges and the marriageexemption to federal estate tax Couples fromoutside Vermont can come to Vermont and bejoined in civil union, but it appears unlikelythat any other state will recognize the union

To read Vermont’s official state guide onthe new law, visit http://www.sec.state.vt.us/pubs/civilunions.htm

Same-Sex Marriage Around the Globe

Americans aren’t the only ones wrestling with

the issue of providing legal rights for same-sex

couples A number of European countries now

provide recognition of gay and lesbian couples

Belgium.A nationwide law gives same-sex

couples inheritance rights

Canada. The Canadian Supreme Court has

ruled that where protections are offered to

“spouses” they must also be offered to same-sex

couples While the right to marry was left

unde-cided, a poll taken after the decision showed

that the majority of Canadians support the right

of same-sex couples to have legally recognized

marriages

Denmark.Denmark was the first country, in

1989, to allow same-sex couples to form

“regis-tered partnerships,” giving them a status and

benefits similar to marriage Registered couples

in Denmark are not permitted to adopt children,

however

Finland. In 2001, Finland passed a same-sex

partnership law similar to Denmark’s

France. Registered partnerships are available,

including tax benefits, public insurance and

pen-sion benefits, inheritance and lease protections

and even the right to demand concurrent

vaca-tion schedules In addivaca-tion, property acquired

together is considered jointly owned unless an

agreement states otherwise

Germany. Gay and lesbian couples may

reg-ister same-sex partnerships Regreg-istered partners

have the same inheritance rights as married

couples, and may adopt the same last name, but

they do not have the same tax advantages and

rights to adopt that married couples have

Greenland.The Danish law extends to

same-sex couples in Greenland (Greenland is a

terri-tory of Denmark.)

Hungary.Same-sex couples are covered bythe nation’s common-law marriage rules, whichcarry some of the same rights—particularly re-garding inheritance rights Same-sex couples donot, however, have the right to register underHungary’s marriage law

Iceland. Iceland’s law is similar to Denmark’s,allowing same-sex couples to register their part-nerships in order to receive many of the rights ofmarriage, but registered couples cannot adoptchildren

Italy.Pisa and Florence allow same-sexcouples to register as domestic partners

Netherlands. The Netherlands has becomethe first and only country to offer full legal mar-riage to same-sex couples Under a law that wentinto effect in 2001, couples who registered as do-mestic partners under Dutch law will have the op-tion to convert that partnership into a marriage,and will be subject to the same laws that governstraight married couples The law applies only tocitizens and legal residents of the Netherlands

Norway.Registered partnerships similar tothose in Denmark are available to same-sexcouples

Spain.Many cities allow same-sex couples toregister as domestic partners Also, a nationwidelaw allows a widowed partner to remain in rentalhousing when only the deceased signed thelease

Sweden.Sweden’s law is similar to mark’s, allowing same-sex couples to registertheir partnerships in order to receive many of therights of marriage, but registered couples cannotadopt children

Den-2 If You Could Marry, How Would

It Affect You?

If same-sex marriage ever is legalized, you and your

partner will need to decide whether marriage is

right for you Some couples are also now faced with

deciding whether to register their civil union in the

state of Vermont Here are some tips for deciding

whether you are ready to pop the question:

• If you have children or hope to raise a family,

marriage is probably the right option Married

couples by law have equal rights to raise their

children, as well as equal obligations of

sup-port In a dissolution, both parents can seek

visitation and custody, and if one parent dies

the other one steps right in as the primary

le-gal parent It is nearly impossible to make

these sorts of arrangements absent a legal

marriage

• Marriage isn’t a prerequisite for owning

prop-erty together, but if you get married, in most

situations in most states your property will be

jointly owned regardless of who pays for it

This is the reverse of the presumption that

applies to unmarried couples Getting married

may be the most efficient way of establishing

a property merger—though if keeping things

separate is more to your taste, you will have

to sign a prenuptial agreement to avoid the

joint ownership presumptions of a legal

mar-riage

• In most states, each married spouse’s earnings

are owned by the two of you, and if the

mar-riage breaks up—regardless of who’s at

fault—you each generally get half of

every-thing you’ve accumulated By contrast, if you

are unmarried, your property is co-owned

only if you have an agreement to make it so;

and likewise for debts and obligations

Di-vorcing spouses are also entitled to demand

alimony if the marriage doesn’t last, without

the need for any explicit contract providing

for post-separation support

• Every marriage requires a formal ceremony

and every marital separation requires some

kind of formal court action—quite often the

help of a lawyer Unmarried couples canbreak up informally, on their own terms

• Absent a legal marriage, a couple needs tosign several agreements to create even a partialframework of protection in the event of death,and certain tax benefits are forever denied tounmarried couples If you are married, how-ever, the surviving spouse generally inherits allthe property if the partner dies without a will

At death, a bequest from one spouse to other is tax free, regardless of its size

an-• Transfers of property upon dissolution of therelationship are also tax free for legally mar-ried couples, but not for unmarrieds

• Marriage can bestow a bevy of important efits, including military or Social Security ben-efits, healthcare and nursing home coverage.Marriage may also qualify you for unpaidleave from your job under the Family LeaveAct But watch out—a married person’s in-come could disqualify a spouse from receiv-ing Social Security, welfare or medical ben-efits she’d receive if she was unmarried

ben-• A legal marriage is the only reliable method

of providing a foreign lover with the leges of immigration to this country, when hedoesn’t qualify under work or other provi-sions of the Immigration Act

privi-If you are ever allowed to make this difficult cision, first decide whether you fall into one of thegot-to-marry or better-not-marry situations Raisingkids, courting a foreign lover or facing a serious ill-ness, for example, generally favors a marriage (un-less it disqualifies you for Medicaid), whereas get-ting saddled with your partner’s debts or losing So-cial Security benefits probably favors a no vote

de-If you don’t fall into either extreme, take a closelook at the marital property rules for your particularstate, evaluate the benefits given your personal situ-ation and get a good sense of what being marriedwould do for you financially Then, considerwhether being married feels right for both of youemotionally If the answers come back positive forboth of you, then proceed, but consider creating aprenuptial agreement if any aspect of the traditionalmarriage structure doesn’t meet your needs If the

impact of marriage feels unduly negative for one or

both of you, however, hold off If and when

same-sex marriage becomes legal, it isn’t likely to be

mandatory

B Domestic Partnerships

Despite the fact that an estimated mere 10% of

American families are made up of a working

hus-band, a stay-at-home wife and children, our legal

and social systems still provide benefits and

protec-tions based on that model Having been left out,

lesbian and gay activists in the early 1980s sought

recognition of their relationships and new

defini-tions of family And so, domestic partnerships were

born Domestic partners are unmarried couples—

same sex or opposite sex—who live together and

seek economic and noneconomic benefits granted

their married counterparts These benefits may

in-clude:

• health, dental and vision insurance

• sick and bereavement leave

• accident and life insurance

• death benefits

• parental leave (for a child you co-parent)

• housing rights and tuition reduction (at

uni-versities), and

• use of recreational facilities

When a state, municipality, county, organization,

private company or university or college considers

providing domestic partnership benefits, it must

ad-dress several important issues: Who qualifies as a

domestic partner—should heterosexual couples be

covered as well as gay and lesbian couples? How

will an employer identify the employee’s domestic

partner—by registration? Must the couple be

to-gether a minimum number of years? Must the

couple live together? Must they share expenses?

Must they be financially responsible for each other?

How does a couple terminate their domestic

part-nership?

Note that even though most domestic

partner-ship applications ask you to state that you are

finan-cially responsible for each other’s needs, these

ap-plications are generally not considered binding tracts of support In other words, your partner can’tsue you for failing to provide for him, as promised

con-If you are interested in working with your ployer toward obtaining domestic partnership ben-

em-efits, we recommend that you get a copy of The

Domestic Partnership Organizing Manual for Employee Benefits, published by the Policy Institute

of the National Gay and Lesbian Task Force Youcan download it from the NGLTF website athttp://www.ngltf.org/pubs

In 1982, the Village Voice newspaper became the

first private company to offer its employees tic partnership benefits The city of Berkeley wasthe first municipality to do so in 1984 In 1995, Ver-mont became the first state to extend domestic part-nership benefits to its public employees In 1997,Hawaii became the first state to extend domesticpartnership benefits to all same-sex couplesthroughout the state (See Section A for more onHawaii’s reciprocal beneficiaries law.)

domes-Today, hundreds of municipalities, counties, vate companies, organizations, colleges and univer-sities offer domestic partnership benefits The com-plete list of institutions is extensive; the benefits of-fered by each is not, however In some cases, allthat is offered is bereavement or sick leave In othersituations, the benefits offered are extensive—andexpensive Often, either the employee foots the billfor his or her partner, or the company pays (when

pri-it also pays for spouses), but the employee mustpay taxes on the benefits This is because the IRSconsiders benefits awarded to an umarried partner

domes-www.lambdalegal.org Another excellent source ofinformation on domestic partnership benefits is theHuman Rights Campaign’s WorkNet website, athttp://www.hrc.org/worknet

Local governments A handful of state agenciesand many municipalities and counties offer domes-tic partnership benefits for their employees A few

also allow city residents to register as domestic

part-ners, even though they obtain no tangible benefits

by doing so The requirements for domestic

partner-ships vary a lot from city to city, but essentially the

partners must live together in an exclusive

relation-ship and share the basic necessities of life

Cities and counties offering sick leave,

bereave-ment leave and parental leave have had few

prob-lems implementing their programs After all, by

offer-ing these domestic partner benefits, the institution

has made the commitment to absorb these costs

Pro-viding health, dental or vision insurance, however,

has not been as easy A commitment on paper does

not translate into a tangible benefit if the city or

county’s insurance carrier refuses to extend coverage

to the domestic partner of a city employee In Ann

Arbor, for example, the city has been unable to find

an insurance carrier willing to cover the domestic

partners of its nonunionized employees; the union

that represents 80% of the city’s employees won’t

support domestic partner benefits out of fear of

los-ing other benefits in exchange And in Minneapolis, a

Court of Appeals has held that the city charter does

not permit the extension of health insurance benefits

to the same-sex partners of city employees

Berkeley allows its employees to choose among

several different health insurance companies When

Berkeley began offering domestic partnership

cov-erage, one company refused to participate and the

city dropped the carrier

Private employers. For a long time, the Village

Voice newspaper looked as if it would be the first

and last private employer to offer domestic partner

benefits By the year 2001, however, many other

companies joined in—there are now hundreds of

private sector employers who provide domestic

partner benefits to their employees

The Alternatives to Marriage website (at http://

www.unmarried.org) has links to information on

domestic partnership benefits, including a list of

major companies that provide domestic partnership

benefits and a guide to getting your employer to

offer domestic partner benefits You can find a list

of the Fortune 500 companies that offer domestic

partnership benefits by visiting the Insure.com

website at http://www.insure.com/health/

domesticemployers700.html

Private organizations. Even if your employerdoesn’t have domestic partner benefits, other orga-nizations with which you do business might Forexample, airlines which used to let frequent flyermembers use their accumulated miles only for theirspouses now usually let you bring anyone Someairlines have extended bereavement discount fares

to domestic partners Several other institutions, such

as museums, health clubs and public television tions, which used to offer membership discountsonly to married couples, now offer them to anyhousehold, regardless of marital status or sexuality

sta-Colleges and universities. Over 100 collegesand universities offer some type of domestic part-nership benefits to students or staff, or both

California’s New Domestic Partnership Law

A comprehensive new domestic partnershiplaw took effect in California in January 2002.With this new law, California, along with Ha-waii and Vermont, is in the forefront of statesoffering legal protections to same-sex couples.Under the California law, a registered do-mestic partner may now:

• adopt a partner’s child using the stepparentadoption process—a faster and less expen-sive process than second-parent adoption

• sue for wrongful death of a partner

• make healthcare decisions for a partnerwho becomes incapacitated

• use sick leave to care for an ill domesticpartner or the child of a domestic partner

• relocate with a partner without losing bility for unemployment benefits

eligi-• apply for disability benefits on behalf of aninjured or incapacitated partner, and

• deduct the cost of a domestic partner’shealth insurance or other benefit fromstate income taxes

Same-sex partners must register with theCalifornia Secretary of State’s Office (http://www.ssa.ca.gov) to be eligible for the rightsand benefits extended under this law

C Other Gains for Gay and

Lesbian Families

One tragedy of society’s failure to recognize lesbian

and gay relationships is that government benefits

traditionally awarded to married spouses—such as

unemployment insurance and workers’

compensa-tion—are denied to same-sex partners Similarly,

lovers of lesbians and gay men have been denied

the right to sue for emotional distress or to stay in

an apartment after their lover dies when their name

isn’t on the lease, because they were not considered

“immediate family.” Slowly, however, things are

changing

Although we report on the victories achieved by

lesbian and gay couples, these cases are not the norm

Most lesbian and gay partners are denied

unemploy-ment, workers’ compensation and emotional distress

recoveries on the grounds that they are not spouses or

members of each other’s immediate family

1 Government Benefits

Several years ago, a gay man in California was

awarded unemployment insurance from the state

when he left his job to care for his lover who had

AIDS Married partners have for years received

ben-efits if they quit their jobs to care for terminally ill

spouses In extending the benefits to gay couples,

the Unemployment Appeals Board declared that gay

relationships are often as serious, loving and

com-mitted as marriages

Another Californian (Susan) quit her job to

ac-company her lover who was beginning a medical

residency in Pennsylvania Susan was awarded

un-employment insurance The Unun-employment

Ap-peals Board judge who decided the case simply

stated that benefits are available when a person

leaves his or her employment to accompany a

spouse to a place from which it is impractical to

commute and that the applicant’s “spouse was

ac-cepted into residency and this certainly provided

good cause for the couple to move.” The judge

knew the couple was lesbian, but clearly chose to

refer to them as spouses, without regard to their sex

or sexual orientation

In another California case (yes, there are reasonsgay men and lesbians flock to the Golden State), agay man was awarded workers’ compensation deathbenefits when his lover, a county district attorney,committed suicide because of job-related stress TheWorkers’ Compensation Appeals Board found thatthe lover was dependent on the employee for sup-port, and said that the homosexual relationship ofthe two men shouldn’t preclude the lover’s rights tobenefits

2 Defining “Family”

New York City has a rental vacancy rate of mately 0%; this means that affordable and decenthousing is virtually impossible to find for thosewithout it When a lover dies and the survivor’sname was not on the lease or named as the succes-sor in interest to a co-op or condominium, lesbiansand gay men dealing with the death of their matehave suffered the added injustice of losing theirhomes In addition, when a tenant’s lover movesinto an apartment, the tenant risks violating thestandard lease clause limiting occupancy to thenamed tenant and the tenant’s “immediate family.”Between 1979 and 1983, several cases were liti-gated in New York addressing these problems Theessential issue in each case was the definition of

approxi-“immediate family.” The cases seesawed back andforth In the first case, the court denied the surviv-ing lover a place to live, stating “[no] authority…holds [that] homosexuals living together constitute afamily unit.” Two years later, the same court upheldthe eviction of a lesbian whose lover had moved inwith her, stating that “[two] lesbians living together

do not constitute a…family.”

But less than a year later, another court refused tolet a landlord evict a man and his female lover simplybecause her name was not on the lease The courtheld that the eviction violated New York City’s HumanRights Law barring discrimination on the basis of mari-tal status

In the same year, another court refused to allow

the eviction of a gay male couple, holding that the

traditional nuclear family is no longer the reality for

many people, and that the tenant did not breach the

“immediate family” clause in his lease But just a

year later, a court upheld the eviction of a different

gay man for violating the “immediate family” clause

And in 1983, New York’s highest court upheld an

eviction of a woman for breaching the “immediate

family” clause of her lease when her male lover

moved in Whether or not he (her lover) could by

marriage or otherwise become part of her immediate

family is not an issue… Were the additional tenant

a female unrelated to the tenant, the lease would still

be violated without reference to marriage.

But this decision lasted only six years In 1989,

New York’s highest court reversed itself After Leslie

Blanchard died, his lover, Miguel Braschi, sought to

stay in the rent-stabilized apartment the two men

shared for over 11 years, despite the fact that only

Blanchard’s name was on the lease The landlord

instituted eviction proceedings against Braschi, who

fought back The court ruled:

In the context of eviction, a more realistic, and

certainly equally valid view of a family includes

two adult lifetime partners whose relationship is

long-term and characterized by an emotional

and financial commitment and interdependence.

The litigation in New York City should be at an

end In 1998, New York’s mayor signed into law a

comprehensive domestic partnership bill, which

in-cludes the right to rental succession

Courts have been called upon to define “family”

in other contexts In Denver, for example, a city

worker who took three days off to care for her

seri-ously injured lover was granted sick leave by a

hear-ing officer who declared the sick leave policy to care

for family members applicable to all city employees,

regardless of sexual orientation In Washington, D.C.,

a woman was allowed to file a claim under the

District’s Wrongful Death Act after her lover died

from injuries sustained when a tree branch broke

through the windshield of the car she was driving A

court found that the surviving partner qualified as

her deceased lover’s “next of kin.” And in California,

a surviving lover of a man who died from AIDS wasawarded $175,000 by a court for emotional distressexperienced after a funeral company mishandled thedeceased man’s ashes in breach of the contract thedeceased man signed with the company This ex-panded the definition of family, as previously suchrecoveries were limited to spouses

D Adult Adoption—Another Way to Cement a

Relationship

One of the legally recognized relationships that ahandful of couples unable to marry have enteredinto is that of adoptive relatives

Three New York City men have sought to adopt

their lovers In In re Adoption of Adult Anonymous,

the judge allowed the adoption because:

• sodomy is not illegal in New York

• New York’s incest law only prohibits sexual

relations between blood relatives, and

• the men claimed legitimate economic sons—facilitating inheritance, handling insur-ance policies and pension plans and acquir-ing suitable housing

rea-A similar adoption was permitted in In re rea-Adult

Anonymous II one year later In In re Adoption of Robert Paul P., however, the New York court denied

a same-sex adult adoption application, holding that

“the evasion of existing inheritance laws” was a mainpurpose of the adoption

Nearly a decade later, the Delaware SupremeCourt in 1993 approved a same-sex adult adoption.The court specifically stated that the couple’s desire

to formalize their close emotional relationship andfacilitate estate planning were permissible reasons

to allow the adoption

A few states, including Florida, have passed lawsbarring gays and lesbians from adopting Florida’sban was upheld by a federal judge in August 2001

in the case of a proposed adoption of a child And

in the recent case of Rickard v McKesson, the niece

of a deceased Florida man, Donald Blackwell,

suc-cessfully challenged her Uncle Donald’s adult

adop-tion of his friend Gordon McKesson under the law

banning gay adoption Naturally, the niece sued

be-cause she was due to inherit her uncle’s estate if the

adoption of Gordon was found invalid

These cases aptly demonstrate the reasons

les-bian and gay couples want their relationships legally

recognized—to benefit from housing, inheritance,

investment and other laws But there are barriers you

will likely face if you try to adopt your lover First, a

court may prove reluctant to grant a same-sex adult

adoption when it is clear that the relationship is a

sexual one Adoption connotes parent and child; to

allow lovers to use it to confer legal status upon

themselves is repugnant to many people

Same-sex lovers planning to adopt face

addi-tional potential barriers:

• state laws barring adult adoptions—Alabama,

Arizona, Hawaii, Michigan, Nebraska and

Ohio all have such laws

• state laws barring gays and lesbians from

adopting—currently, Florida, Utah and

Missis-sippi have such laws

• sodomy statutes

• incest statutes, and

• laws specifying a minimum age difference

be-tween the adoptive parent and child

Only a handful of states prohibit adult adoptions

Sodomy, however, is still illegal in many states And

in most states, incest laws prohibit sexual relations

between an adoptive parent and child

These are the outside forces that keep lesbians

and gay men from adopting their lovers But many

other factors give lesbians and gay men reason to

pause First, as lesbians and gay men seek the right

to raise children, adopting a lover seems

inappro-priate Second, adoption is permanent—most

same-sex lovers want the option of ending their

relation-ship Finally, adoption necessarily means that the

court must terminate the parent-child relationship

between the person to be adopted and his legal

parents For a lesbian or gay man with a positive

relationship with her or his parents, this could be

both destructive and insulting

Other Ways to Create a Family

Marriage, domestic partnerships and adoptionaren’t the only ways to cement a relationshipwith your lover You can also write a livingtogether contract We cover general living to-gether agreements in Chapter 6, and agree-ments for buying a house together in Chapter

7 And of course, you can make an estate plantogether—that is, draft a will, living trust orother documents—leaving your property toone another We cover estate planning inChapter 5

E The Sad Side of “Marriage”

Wouldn’t it be wonderful if lesbians and gay menfell in love, moved in together and lived happily (ormostly happily) ever after? It does happen, on occa-sion But, human beings and human nature beingwhat they are, relationships can turn sour

1 Breaking Up

Ending a relationship can be harder than startingone If you have kids, we suggest you read Chapter

3 and the pertinent sections of Chapter 9 For help

on dividing your property, take a close look atChapter 9 Here, we just want to talk about endingyour “family” status

If you went through some kind of union, mitment or marriage ceremony, you are not re-quired to take any legal steps to end the relation-ship—remember, you are not legally married (Ver-mont couples who register their civil unions in thatstate must seek a dissolution in the same familycourts that married couples use.) Many people goback to whomever officiated at their ceremony andseek help in splitting up Sometimes, a couple will

com-stand before friends and community to assert their

new status as single people and to commit to

work-ing toward a healthy end of the relationship Certain

religious traditions require that you get a religious

divorce decree Of course, if this “touchy-feely” stuff

seems strange to you, you can simply pack your

bags and move out (As Paul Simon said, there are

“50 ways to leave your lover.”)

If you registered as domestic partners, be sure to

de-register If one of you adopted the other, you

may want to have a lawyer look at your state’s

adoption statute to see if there are grounds to

re-scind the adoption decree

2 When Relationships Turn

Violent

Of course we’d prefer if there were no need for this

section But domestic violence and abuse are a very

real part of the gay and lesbian community The

good news is that the community has become much

more responsive to these issues, with many more

resources now available to those in crisis

If you are the victim of domestic violence, your

number one concern is your own safety You may

be ashamed, embarrassed or feeling guilty, and all

of those feelings are understandable But it’s most

important that you get out of your living

arrange-ment and into a safe environarrange-ment If you are a

les-bian, contact a battered women’s shelter If you’re

concerned about the homophobia you may

encoun-ter—or if you’re a gay man with no shelter to turn

to—then go to a friend or supportive relative

A few states, including California, Massachusettsand Ohio, cover same-sex relationships in their do-mestic violence statutes This means that you canget a restraining order to keep the abuser awayfrom you You will probably need the help of alawyer or women’s clinic

Here is a list of some resources and contacts onthe issue of gay and lesbian domestic violence

• Go to this site, http://

www.rainbowdomesticviolence.itgo.com, forresearch and links on domestic violence inthe gay and lesbian community

• The National Domestic Violence Hotline, at800-799-SAFE, is a national toll-free numberthat provides information to callers (gay andstraight) about shelters and assistance pro-grams in their area You can also check outthe hotline’s website at http://www.ndvh.org

• The Lambda Gay & Lesbian Anti-ViolenceProject (AVP), has a website at http://

www.lambda.org, and their address is P.O.Box 31321, El Paso, TX 79931-0321 The tele-phone number for the Lambda Anti-ViolenceProject is 916-562-GAYS

• The New York City Gay & Lesbian lence Project maintains a website at http://www.avp.org, and their 24-hour hotline num-ber is 212-714-1141

Anti-Vio-• San Francisco’s Community United AgainstViolence has a hotline at 415-333-HELP, andtheir website address is http://www.cuav.org

• Massachusetts residents can contact the GayMen’s Domestic Violence Project at 800-832-

1901 Their website is located at http://www.gmdvp.org.■

Living Together and the Real World

A Can I Take My Lover’s Last Name? 2/3

1 Change of Name by Usage 2/3

2 Change of Name by Court Order 2/4

B Renting an Apartment or House Together 2/4

1 Sexual Orientation Discrimination 2/4

2 Making an Agreement About Sharing a Rental 2/6

3 Moving Into Your Lover’s Rented Home 2/7

4 Legal Relationship of Tenants to Each Other 2/9

5 Moving On 2/9

C Will I Lose My Public Benefits If My Lover Moves in With Me? 2/10

D Cash and Credit 2/11

1 Joint Accounts—Dos and Don’ts 2/11

2 Buying and Investing Together 2/15

3 Can We File Joint Income Tax Returns? 2/15

F Can My Foreign Lover Come Visit or Live With Me? 2/19

1 Visiting the United States 2/19

2 Moving to the United States 2/19

2

When you and your lover decide to live

together, you are probably (or

hope-fully) acting on romantic impulses

Un-fortunately, practical problems inevitably tag along

in the wake of romance Most of these problems

aren’t legal and don’t involve lawyers All the

barris-ters in the world can’t help you when you and your

lover discuss where to vacation, what to play on the

stereo and what to hang on the living room wall

Many day-to-day hassles, however, are

con-nected with law Some, such as employment

dis-crimination, aren’t addressed here because they

aren’t specifically related to living together as a

les-bian or gay couple In this chapter, we focus on the

legal situations lesbian and gay couples face, living

in the world Our goal is to be specific enough to

be helpful without being overly technical If you

need more information on a subject, see Chapter

10, Help Beyond the Book.

Although lesbian and gay couples lack the

ben-efits and protections of marriage, many of the

prac-tical problems arising from this reality can be

man-aged through careful planning For example, even

though your partner has no statutory right to your

property at your death, by preparing a will you can

leave your partner any property you want to And

while no spousal support rules govern what

hap-pens if you split up (unless you are Vermont

resi-dents who have registered as a civil union), you can

draw up a legally binding agreement defining what

happens financially if you separate

Frustratingly, though, you’ll face some real

prob-lems concerning how the government treats you as

a same-sex couple You’ll probably pay more taxes

at some point in your relationship Further, no

fed-eral law prohibits discrimination against lesbian and

gay people or couples in areas such as

employ-ment, housing, public accommodations or credit

Some type of protection exists in 17 states

(Califor-nia, Connecticut, Colorado, Hawaii, Illinois, chusetts, Minnesota, Montana, Nevada, New Hamp-shire, New Jersey, New Mexico, Pennsylvania,Rhode Island, Vermont, Washington and Wiscon-sin), the District of Columbia and over 150 citiesand towns, but often places that pass anti-discrimi-nation ordinances are the very localities that largelyaccepted gays and lesbians before they passed thelaw

Massa-We mean no criticism of antidiscrimination nances when we say that in many cities these lawsare more symbolic of lesbian and gay political ac-ceptance than they are devices to bring aboutchange We support and applaud lesbian and gaypolitical activists while, at the same time, we’vewritten a book about living together, not fightingpolitical struggles It is important to remember,however, that because of many pioneering politicalbattles, lesbian and gay couples can live openly inseveral parts of the world

ordi-The law can be unpredictable when

applied to gays and lesbians. The laws

re-garding the practical matters we discuss in this

chapter can vary from state to state, and—perhaps

worse—can be unclear Moreover, these laws as they

are applied can be distressingly different from how

they are written Lesbian and gay couples must,

un-fortunately, still live with substantial legal

uncer-tainty Your goal, as we urge throughout this book, is

to avoid uncertain outcomes by staying out of court

to the extent possible and to instead arrange your

legal and financial affairs so you stay far away

from lawsuits.

A Can I Take My Lover’s Last

Name?

When Reverend Jim Dykes and his lover affirmed

their commitment, they decided to symbolize that

commitment by sharing the same last name They

agreed that hyphenated names were ungainly; Jim

chose to take his lover’s last name “We decided I

would change my name to Dykes,” he told us,

“be-cause my lover comes from a wonderful Southern

family with a proud and historic name.”

Lots of lesbians and gay men change their

names Some women who changed their name in a

heterosexual marriage want to return to their

pre-marital name Gay and lesbian partners in a couple

sometimes hyphenate their names or choose a

name that’s the combination of the two (Audrey

Berman and Sheila Gander become Audrey and

Sheila Bergan.) And then there are people like Jim

Dykes, who simply take their lover’s last name

Changing your name is perfectly legal and

usu-ally easy Bear in mind that you cannot change your

name to defraud creditors, for any illegal purpose

or to benefit economically by the use of another

person’s name—that is, you probably can’t become

Bette Midler or Gore Vidal Otherwise, you can

change your name for any reason and assume any

name you wish

You can change your name in one of twoways—usage or court order

1 Change of Name by Usage

One way to change your name is simply to use anew one Last week you were Steve Nurd; thisweek you’re Steve Savage If you use Savage consis-tently and insist it’s your name, it is The obviousexample of usage name change is marriage There’s

no legal proceeding (aside from the marriage itself)when one spouse changes her name to the other’s.She simply does it—and it’s perfectly legal Anyadult can accomplish a similar name change, al-though you must obtain a court order to change achild’s name

The keys to changing your name by usage areconsistency and stubbornness You must use yournew name in all aspects of your life—socially, pro-fessionally and on identity cards and personal docu-ments such as credit cards, driver’s license and yourSocial Security card Getting most documents withyour new name shouldn’t be too much trouble.Clerks are familiar with changing forms for womenafter marriage and quite agreeably change awoman’s name on request More men are changingtheir name after marriage—often by hyphenatingtheir name with their wife’s—so few clerks willhassle a man requesting a new document to reflect

a name change Many organizations and agencieshave a specific form to request a name change.Others will accept an official-looking form declaringyour name change

Changing your name via the usage method has become more difficult in California. California judges have consistently af- firmed an adult’s traditional (common law) right to change his or her name without going to court But

as the world gets more bureaucratic and pressure increases to stop unscrupulous people from stealing another person’s name (identity theft) getting your name accepted via the usage method has become