Family Law

LGBT relationships run the gamut from simply living together (cohabitation) to marriage. Most couples form lasting unions, but there will be rifts in others that lead to a break-up, with the two individuals going their separate ways. Financial differences or problems are a common result of the failures, and disagreements can result in emotional crises, costly court cases, and judgments that neither party likes. A little careful planning can usually avoid most or all of the drama. Here are some of the things to consider:

Cohabitation

Many partners have been in long-term cohabitation relationships, because domestic partner registration or marriage weren’t available to them. For others, cohabiting is simply a casual, convenient and voluntary way to live together. They may not realize that there can be specific responsibilities the partners have under civil law. They may not be able to just walk away if they decide to separate.

Civil Court (as opposed to Family Court) handles disputes cohabiting partners might have over the terms of their relationship. Were promises made and not kept? A partner must prove a legal basis for a claim, such as an oral, written, express or implied contract. The Court will determine whether there was an enforceable contract, and if so, whether it has been breached by one or both of the parties. These lawsuits (popularly known as “palimony cases”) can be very expensive, take many years, and are difficult to win.

A Cohabitation Agreement is the best way to avoid financial disputes in the relationship. The partners identify their financial contributions to the relationship, and what they expect to take away from the relationship if they separate. If the partners don’t want a formal agreement (“It’s not romantic”; “We would never do anything to hurt each other”), then it is essential for each partner to maintain individual bank and investment accounts, not hold title to any assets in joint ownership, and not contribute any money toward the purchase of any asset (house, car, etc.) that is only in the name of the other partner. Never give up a job or other assets because a partner promises support, without a specific agreement in writing stating the promise and that the partner will not be left destitute if the relationship ends.

Marriage and Registered Domestic Partnerships (RDP’s)

In California, marriage and RDP’s are essentially identical. Under state law, spouses and registered partners have very clear and defined obligations to care for and support each other. They can’t just say goodbye and walk away if one of them has trouble with money, gets sick, or finds a new love-outside the union. If they want to end the union, they must file a petition for dissolution of marriage and/or RDP.

Family Court handles the dissolution process, and supervises all the steps that must be taken to ensure that the final judgment will be fair and equitable. The expense of dissolution and the emotional toll on spouses or partners is directly related to whether the couple can agree to an amicable split. Each must disclose detailed financial information to the other, including listing all assets and debts. If minor children are involved, there will be a comprehensive review of their current status and a determination will be made about the best plan for their future support and care. Pets, too, are often part of the picture, and their welfare must be carefully considered in a judgment. The dissolution process can take anywhere from a minimum of 6 months to a year or two, depending on how quickly the couple can reach agreement on all the terms.

Pre-marital or pre-RDP agreements are the best way to avoid future conflicts and disruption of personal lives when a marriage or RDP ends. Post-marital or post-RDP agreements may be created if the union has already taken place. Based on many of the dissolution cases we have handled, these agreements should be essential for any couple sincerely making a long-term commitment to each other. Couples can gain security or lose a fortune by choosing to enter or not to enter into such agreements.

Both Pre-marital/RDP and post-marital/RDP agreements must meet strict California legal requirements, including:

• The agreement must be made voluntarily, and not under fraud, duress, or undue influence

• Parties to the agreement must have legal capacity to enter into an agreement

• The agreement may not be unconscionable

• The agreement must not be against public policy

• Full disclosure of each party’s assets, debts and financial details must be made

• There must be independent legal counsel for each party, unless that right is

  properly waived in a separate writing (in our practice, both sides are always represented by independent counsel)

Every relationship faces an uncertain future. Agreements are roadmaps that make each relationship stronger and more secure. They provide clear understanding of each person’s financial status and obligations, and are the foundation for a couple’s future, no matter what happens.

It’s been a year since the landmark U.S. Supreme Court decision allowed federal recognition of same-sex marriages. The LGBT community is still rejoicing, and with great energy, is pushing ahead for equal rights in all the other aspects of our lives. 

What have I seen in my practice this year? Many committed same-sex couples getting married - some quietly, some with joyous celebrations, and a few with reckless and thoughtless abandon. Most have lots of questions about what the legal and financial effects of marriage will be. Those who have come to me for answers are eager to “do things right” and protect themselves and their future. Some who rush into marriage without thinking, or without understanding the consequences, may not make it into the future together.

Here are a few of the questions and issues I have worked with recently:

1. If we marry, does everything we own become community property?

   That depends on how you own the property before you marry, and how you

   agree to acquire new property after you marry. Do you already have joint bank

   and investment accounts? Do you own your house as joint tenants? Do you

   share legal title on your car? It is likely that these will be considered community property once you marry. If you are Registered Domestic Partners, you are already subject to community property rules, and marriage will not change that.

1. We own a checking account together, and furniture and things in the house, but we want to keep our investments and other property separate after we marry. I want to stay owner of our house. How can we do that?

   The very best way is to create a pre-marital agreement that clearly identifies each person’s separate property and the couple’s shared property. This agreement will also state who will own new property acquired by either or both after marriage. Both partners agree that all property will be covered under the agreement during the marriage. And if there should be a breakup in the future,

   there will be little or nothing to argue about when dividing up their assets and debts. A pre-marital agreement usually must be signed by both parties at least seven days before the date of marriage, so it is not something that can be put off until the last minute.

    

2. We just want to be sure that once we are married there won’t be any problems with everyone recognizing that we are now legally responsible for each other.

   You will have your marriage license, if anyone asks. But in most states in the U.S., this will be meaningless. In spite of federal recognition of same-sex marriages, they are only legal in 19 states and the District of Columbia right now. In all the other states, lawsuits are pending, but will not be quickly resolved. If you travel to other countries, most do not recognize marriage equality at all, and some criminalize homosexual behavior of any kind.

    

   For legal protection, married and unmarried same-sex couples should have all the important documents that spell out the rights of partners and spouses to make personal and medical decisions in case of emergency, incapacity or death.

   At a minimum, there should be an Advance Health Care Directive, and a means to provide this immediately to medical and other professionals in an emergency.

    

   You may not want to carry the actual documents around with you all the time, so there are some excellent organizations that store them for you electronically, and can provide them 24/7, any day of the year. We provide this service to most of our clients.  You are issued an emergency access card, the size of a credit card, to carry in your pocket or wallet. It provides the information necessary to access your documents right away. This can give partners and spouses a solid legal foundation for their relationship, and peace of mind, no matter where in the world they might be.

1. My old partner and I were Registered Domestic Partners (RDP) years ago, and then split up. Now I am going to marry my new partner. Will this be a problem?

   Unfortunately, yes. You are not free to marry a different person until your RDP is terminated. In nearly all cases, you are required to file for a dissolution (divorce), just as if you had been married. You must file a petition with the court, and go through the process of serving notice to your old partner, dividing up assets and debts, and agreeing to a settlement of your affairs that the court will find is fair for both of you. A dissolution can take anywhere from 6 to 8 months to a year or two, depending on the amount of cooperation between partners in getting all the paperwork filed, and any disagreement as to how to settle things.

    

You’ve heard enough about estate planning from your family and friends. You’re finally convinced that you need to do something to protect yourself, your partner, your property. But, you say, “I’ll be darned if I’ll pay a high-priced attorney to fill out a few forms”. You saw an ad for a complete estate plan package for $995.00  -  just go on-line, down-load all the forms, fill them out and the job’s done. You don’t have to meet with an attorney, think about it, or even leave your home to do all the estate planning you need. 

Or you heard about a “document service” where a paralegal provides you with several forms, you fill them out, and she puts them in a nice, neat file folder for you. Cheap, over and done with.

And guess what? Your local office supply store sells pre-printed legal forms. Pick them up, fill in the blanks, and you’re good to go. Why not take advantage of these or other low-cost shortcuts to peace of mind? 

There are very strong reasons why most people should avoid these methods. Wills and Trusts require careful thought and sound legal advice. Tax planning is an important part of it, too. An estate plan isn’t just an assortment of forms and documents. It is a map for the future that considers all the aspects of your present life, requires decisions about what might happen to you and your family, and is crafted so the plan will continue to evolve as time goes by.

A recent court case illustrates one major hazard of do-it-yourself documents: 

A Florida lady filled out an “E-Z Legal Form” when she made out her Will. She wanted to leave all of her property to her sister, then to her brother, if her sister predeceased her. The sister did die first, and the brother claimed he was entitled to the entire estate. But the pre-printed Will stated that all “listed” items should go to the brother. Not all of the lady’s assets were listed. And the Will did not have a residuary clause (and not even any room on the form to add such a clause) providing for the disposition of property not listed in the document.

Two of the lady’s nieces (children of another brother, already deceased) brought action. After lengthy arguments on both sides, the court decided that the listed items must go to the brother, as the Will provided, but the unlisted assets must pass outside the Will, to the nieces, who were the next heirs in the line of succession.   Although it may have been the lady’s intent that her brother inherit all of her estate, the Will did not say so, and it did not provide any way for him to claim the unlisted items. Concurring Justice Barbara Pariente commented, “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage ‘penny-wise and pound foolish.’”

Pre-printed forms can’t possibly include all the language needed to cover the wide range of possibilities and probabilities that are part of our everyday lives. There is no single Will, Trust, Power of Attorney or any other pre-printed form or pre-written format that can meet the needs of everyone. How would you know if some essential language is missing, or certain statements can cause problems, or your intent is not truly reflected in the document? How do you know what you don’t know?

Attorneys have studied the laws (and the court cases) and get to know you and all the details of your particular situation. They recognize the hazards and pitfalls of missing or incorrect language, and draft comprehensive documents that fit you like a glove. You are not a John Doe, and your estate plan shouldn’t be, either.

For those of us in the LGBT community, it is even more crucial that our plans cover the  unique family, health and property issues we face because we still lack equality under most state and some federal laws. A properly crafted estate plan gives us the visibility and legal standing that is so essential to protect our families and our assets. Our special needs require special planning.

There should be ads and articles in the newspaper and magazines cautioning people against using pre-printed legal forms. But attorneys often chuckle about this. They don’t plan to run any ads. They get a lot of business from clients who tried the do-it-yourself approach and found the documents unusable when they were needed. Folks who wanted to save a little money bought a lot grief for themselves or their families.

In the court case, the lady may have tried to save herself a few dollars by filling in the blanks, but in the end her estate had huge attorneys’ fees and two years of wasted time. The nieces, of course, were delighted with the E-Z Legal Form she used. They came out over $100,000 ahead. Definitely not the result the lady wanted.

1) We are married and reside in a state that recognizes our marriage. Do we have to file state income tax returns jointly as married? Do we have to file our federal income tax returns jointly as married?

2) We got married in a jurisdiction where same-sex couples can legally marry, but we reside in a state that does not recognize our marriage. How should we file our state income tax returns? Do we still have to file our federal income tax returns as married?

3) If we are married but live in a state that does not recognize our marriage, do we have to pay federal taxes on medical benefits paid by my employer for my spouse? What about state taxes?

4) We were married before the IRS began to recognize same-sex marriages in 2013. Can we re-file our federal taxes as a married couple for previous years? What is an amended return?

5) If we have a civil union can we file our state or federal taxes as married? Aren’t civil unions supposed to be treated the same as marriage?

6) If we had a civil union in a state that now has marriage equality, are we considered legally married by our state and/or the federal government?

7) Will I pay more federal taxes? What are the major changes to my federal tax filing?

8) Other than income taxes, how are my other taxes impacted?

1) We are married and reside in a state that recognizes our marriage. Do we have to file state income tax returns jointly as married? Do we have to file our federal income tax returns jointly as married?

If you were married in 2013 and continue to live in a state that recognizes your marriage, you should file both your state and federal tax returns as married. However, you can choose whether to file “Married Filing Jointly” or “Married Filing Separately.”

Your filing status is determined on the last day of the year. If you were married on the last day of the year, you will be considered married for the entire year. Likewise, if you were single on the last day of the year (for example, if you got divorced) you will be considered single for the entire year. There are some exceptions to these rules, so check with a tax professional if you have a question about your filing status.

2) We got married in a jurisdiction where same-sex couples can legally marry, but we reside in a state that does not recognize our marriage. How should we file our state income tax returns? Do we still have to file our federal income tax returns as married?

The good news is - the IRS recognizes the legal marriages of same-sex couples, no matter where you now live, so if you were married in the 2013 tax year, you need file your federal income taxes as married. You can choose whether to file “Married Filing Jointly” or “Married Filing Separately.”

The bad news is - if you live in a state that does NOT recognize the marriage of same-sex couples, you will likely need to file your state income tax return as “single,” even though we believe this is unfair and discriminatory. Some people choose to include a note or letter stating that they are married and object to filing as “single.” Such a letter will not affect your state tax status right now, but is a clear statement of your objection to be treating unfairly by the state in which you live.

There are some exceptions where non-recognition states are allowing married same-sex couples to file state taxes as “married” even though they do not generally recognize marriages of same-sex couples for other purposes. And some states have developed special tax procedures or instructions for couples who will be filing as married with the federal government but as single with the state, so you should consult your state department of revenue or a tax professional for more information – and contact Lambda Legal’s Help Desk for more resources.

3) If we are married but live in a state that does not recognize our marriage, do we have to pay federal taxes on medical benefits paid by my employer for my spouse? What about state taxes?

You will probably have to pay state taxes on these benefits if your state does not recognize your marriage, but you will not have to pay federal taxes.

Typically, when an employer provides group health insurance and premium contributions for its employees and their spouses, children and other dependents, the value of those benefits is not taxed by the federal government as “income.” But when all of DOMA was still in effect, the IRS could not recognize same-sex spouses, so this extra “imputed income”was taxed. Married same-sex couples paid more taxes than other married couples. The good news is – now that the core section of DOMA has been struck down, his tax advantage is now available to married same-sex couples for the purposes of federal taxes.

If you were charged federal taxes on this imputed income, you can file a refund claim. For guidance from the IRS on how to claim refunds for or adjust overpayments of certain taxes on benefits provided to same-sex spouses, click here or here. You can also check out the instructions for IRS Form 1040X.

4) We were married before the IRS began to recognize same-sex marriages in 2013. Can we re-file our federal taxes as a married couple for previous years? What is an amended return?

Generally speaking, the IRS allows taxpayers to amend their returns up to three years after they were originally filed. If you were legally married during the 2010, 2011 or 2012 tax years, you may be able to file amended returns as “married filing jointly” or “married filing separately” for those years.

To make a refund claim for income taxes, an individual must complete an amended tax return for each tax year at issue and send it to the IRS with an explanation as to why the original filing was incorrect. The IRS has a precise process and required forms for amended returns. For more information, see the instructions for IRS Form 1040X and GLAD’s Tax Time and Preserving Your Federal Rights. Note that to recover Social Security taxes paid or taxes imputed on health insurance for a spouse, you have to specifically request that such amounts be refunded.

There is some question about the deadline for filing an amended return when a couple could not file a tax return as married but now can. Planning conservatively, you should file any amended return within three years of its original due date, as opposed to the extended due date. For example, for the tax year 2010 (where the return was originally due April 15, 2011), any amended return would have to be filed by April 15, 2014.

You should also consider potential downsides of taking these steps,including an increased risk of audit orthat you may owe more taxes as a married couple and may, therefore, have to pay back taxes for these earlier years. A tax professional can help you determine your best options.

Finally, if your spouse died before DOMA was struck down and you think you paid more in taxes than you should have because of DOMA (e.g., you could not take an inherited IRA as a spouse), you should consult a qualified tax professional for advice.

5) If we have a civil union can we file our state or federal taxes as married? Aren’t civil unions supposed to be treated the same as marriage?

No, marriages and civil unions are two separate legal statuses.

If your state recognizes civil unions, it may grant you all the same state-level rights as a marriage, so you may be able to file state taxes jointly. You should carefully review your state tax instructions for information on how to proceed, or contact a tax professional.

The IRS (and most other federal departments) only recognizes marriages. It does not recognize civil unions, registered domestic partnerships, or similar “marriage-like but not marriage” statuses from foreign countries. Federal law preempts state laws, which means that your state has no control over what the federal government does. Even if your state has a law that says that civil unions must be treated the same as marriage, the federal government will not do so; that law only affects the state (and more local) levels.

If you want to be able to file your federal taxes as married, you will need to get married. However, you should be aware that doing so may affect your eligibility for federal benefits, such as assistance based on need. While we cannot advise you whether or not you should get married, please don’t hesitate to contact our Help Desk or check out our After DOMA fact sheets for additional information.

6) If we had a civil union in a state that now has marriage equality, are we considered legally married by our state and/or the federal government?

That depends on the laws of your state! After achieving marriage equality, some states that offered civil unions automatically converted those civil unions into marriages. In other states, you have to take steps to convert your civil union to a marriage if you want to be married.

These states automatically converted civil unions performed in that state into marriages: Connecticut and New Hampshire. Delaware will also convert all existing civil unions into marriages on July 1, 2014.

These states require some additional step to convert their civil unions to marriages: Vermont, Rhode Island, Delaware (until July 1, 2014), Illinois and Hawaii (in Hawaii, you will need to get married to your partner; no conversion is available).

If you have any questions about converting your civil union to a marriage, please contact our Help Desk. 

7) Will I pay more federal taxes? What are the major changes to my federal tax filing?

In some instances, joint filing may result in higher taxes because of the so-called “marriage penalty;” there are other instances where joint filing may reduce overall tax exposure and provide opportunities for larger income tax deductions.

As a federally recognized married couple, you must select between a “married filing separately” and “married filing jointly” on your 2013 tax return. By far the most common selection is “married filing jointly.” The more rare “married filing separately” limits deductions and credits you can claim; it is used to separate the tax liabilities of two married people. This is useful if, for example, you are in the process of divorcing and it is not yet final. Generally, joint tax filing helps couples with significantly varying incomes. If, for example, one person is a stay-at-home parent, while the other parent supports the family with her employment, such a couple would “share” the income and the higher earner would effectively be taxed at a lower income level, while the lower earner stays in the same low bracket, for an overall gain for the couple. If, however, the couple is composed of two high-earners, a joint filing may result in the overall income landing them in a higher tax bracket - the so-called “marriage penalty.” You can file jointly with your same-sex spouse even if one of you does not have any income or deductions for that year. If you are concerned about filing jointly or separately with your spouse, we recommend that you discuss your filing situation with a tax planner. Many online tax services and accountants will also give you the opportunity to “run the numbers” and compare the tax consequences of either type of tax filing.

Being treated as married by the federal government impacts other aspects of your overall federal income tax liability. Some of these are complex and it is important to seek out tax advice from a professional with your questions, but here are a few highlights. There are some deductions that joint filing may increase or change, including (1) the standardized deduction; (2) the sale of principal residence exclusion; and (3) if one person is on the other’s health insurance, a joint filing couple will no longer be forced to count that health insurance benefit as taxable income. Tax filers may either take “itemized” deductions or a “standard” deduction, whichever is higher. For an individual “single” filer or one filing as “married filing separately,” the standard deduction is $6,100; however, for joint-filers, the standard deduction rises to $12,200.^[1] Here is a sampling of how other itemized deductions add up for joint filing:

• Exclusion of gain from sale of principal residence: An individual filer may only take $250,000 for this exclusion, while a couple filing jointly may take $500,000.
• Qualifying Medical and Dental Expenses: If one spouse has a high amount of medical and/or dental expenses in a given tax year, those expenses may be used as a deduction for a joint filing (provided that the expenses exceed a certain percentage of the joint income).
• Adoption Tax Credit: Qualifying expenses incurred in the course of an adoption, which can be quite costly, may be offset with a tax credit of up to $12,650. This tax credit may be used by a parent who is seeking a second-parent adoption of a child born to their spouse. The dollar amount of the tax credit begins to decrease above an income of $189,710 and disappears entirely for incomes above $229,710.

8) Other than income taxes, how are my other taxes impacted?

With Section 3 of DOMA struck down and the IRS interpreting the ruling broadly according to the “state of celebration,” other taxes beyond your income taxes may be affected. If your spouse died in 2013 and you are entitled to an inheritance from his or her estate, you will no longer be treated as a legal stranger for federal estate tax purposes: you will be allowed to utilize spousal exemptions for some of those assets. At the federal level, estate taxes are not at issue for a transfer to a surviving spouse, where the estate is valued at less than $5.25 million dollars. Similarly, same-sex couples no longer need to worry about gift tax treatment: you can give your same-sex spouse a gift of any amount without incurring any federal gift tax consequences.

RIVERSIDE COUNTY MARRIAGE INFORMATION

Marriage Licenses 

A marriage license may be obtained from most branch locations of your County Clerk’s Office.  An appointment may be required, so it is very important to call for instructions before going to the location.  Blood tests are not required.  There is no residency requirement in California.  You do not need a witness to purchase a marriage license.

The couple must appear together with a valid government-issued photo I.D., and must be at least 18 years old.  It is recommended that you also bring a certified copy of your birth certificate, to expedite the identification process.  If you have had a divorce or dissolution of marriage or state-registered domestic partnership (in any state or country) in the past 90 days, you must bring in your final divorce/dissolution judgment. 

The license is valid anywhere in the state of California.  You may write and request a marriage license application be sent to you.  Be sure to include a self-addressed, stamped envelope to return it in.  Or, you may visit the County Clerk’s website to obtain an application.  Fees vary by county, and most counties accept cash, checks, money orders and certain credit cards. 

Ceremonies

The marriage ceremony can be performed the day the license is issued, but must be performed within 90 days of obtaining the license.  The ceremony may be performed anywhere by a priest, rabbi, minister, judge, authorized legislator, or a person authorized by the Commissioner of Civil Marriages.  You may have a civil ceremony performed by a staff member of the County Clerk’s Office.  You must bring at least one witness with you.

Certified Copies

Within 10 days after the ceremony, wherever it is held, the license must be returned to the Recorder’s Office to be recorded.  Certified copies may be obtained one week after recording and there is a fee for each copy.

Name Change

Very Important:  Parties are not required to have the same name, nor are they required to change their name.  If you do wish to identify a new name on the marriage license, it must be entered on the marriage license at the time you apply for the license.  You may not amend the marriage license after it has been issued or add or change the name you wish to be known by after you are married.  The name cannot be changed by the County Clerk.  Any changes or corrections to the name after the marriage license has been issued will require a court ordered name change.

A person may adopt any of the following middle names:

• The current last name of either spouse
• The last name of either spouse given at birth
• A hyphenated combination of the current middle name of the personor spouse
• A hyphenated combination of the current middle name and the last name given at birth of the person or spouse

A person may adopt any of the following last names:

• The current last name of either spouse
• The last name of either spouse given at birth
• A name combining into a single last name all or a segment of the current last name or the last name of either spouse given at birth
• A hyphenated combination of the last names

Note:  You may not change your first name using this process.

Parties wishing to use their new spouse’s last name may begin using it right after the ceremony.  Any governmental or financial agency that has your previous name on file should be contacted regarding the name change.   Examples are Social Security, DMV, banks and health insurance companies.  A certified copy of the recorded marriage license may be required.  Generally these agencies do not charge a fee for changing your name on their records.

* THIS INFORMATION IS BEING PROVIDED AS A COURTESY, AND IS NOT INTENDED AS LEGAL ADVICE.  FOR ADDITIONAL INFORMATION, PLEASE CONTACT THE RIVERSIDE COUNTY ASSESSOR-COUNTY CLERK – RECORDER.

Locations:

INDIO                                                                          HEMET

38-686 El Cerrito Road                                             880 N. State Street, Suite B-6

Palm Desert, CA 92211                                            Hemet, CA 92543

(760) 863-7490                                                           (951) 766-2500

RIVERSIDE (GATEWAY)                                         TEMECULA

2720 Gateway Drive                                                  41002 County Center Dr., #230

Riverside, CA 92507                                                 Temecula, CA 92591

(951) 486-7000                                                           (951) 600-6200

RIVERSIDE (DOWNTOWN CAC)                            BLYTHE

4080 Lemon Street, 1^st Floor                                   270 N. Broadway

Riverside, CA 92501                                                 Blythe, CA 92225

(951) 955-6200                                                           (760) 921-7888