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Then and Now, Slow but Steady

Posted on June 2, 2011 at 3:05 AM

Then and Now; Slow but Steady

By: Rivka Israel, Esq.


Over the past seven years we have watched as changes have taken place in the law and as the recognition of the rights of members of the same-sex community has increased. This piecemeal process, at times, has resulted in some strange scenarios. As of January 1, 2005, domestic partners were granted the same rights and responsibilities as married spouses, in theory. In reality, this was not and is still not the case. While we are not yet on equal standing with heterosexual couples in many aspects, some major changes have occurred and should be recognized.

 

The most exciting of the changes relating to same-sex couples came in 2008 when a local trial court issued its decision recognizing the right of same-sex couples to marry. Soon thereafter this right was taken away by vote of the citizens of our state. This issue is currently in the Court of Appeals. For details on the status of this litigation please visit my website or social media.

 

On the subject of same-sex marriages, we have had numerous changes in law as well as procedure. Before 2009, same-sex marriages entered into in another state were not recognized in California. These couples also could not petition for dissolution of their marriages in this state. This resulted in some strange outcomes since domestic partnerships from other states were recognized. In 2009, the law was amended to recognize foreign same-sex marriages validly entered into prior to November 2008 and recognized without the term “marriage” after that date. As of January 2011, the statute relating to dissolution of domestic partnerships was amended to allow same-sex married couples to dissolve their marriages in this state. Until January of 2011, if a same-sex couple who had married as well as registered wished to dissolve their relationship they were required to file two separate Petitions for dissolution, one for each relationship, and had to pay two separate filing fees. As of January 2011, such parties may now dissolve both relationships in one proceeding. In addition, many of the rules and laws relating to division of property and related tax consequences upon dissolution have been amended.

 

In July of 2007, California Department of Social Services recognized the domestic partner of the parent of a SSI recipient’s child as a relative to be included in the filing unit. This recognition was that of a step-parent not that of the child’s legal parent. In 2009, California Health and Human Services issued an All-County letter stating that for the purpose of the DSS services, domestic partners and same-sex married spouses, who have not adopted their partner’s child , shall be treated as step-parents. In 2010, in response to a memorandum by the President of the U.S., Health and Human Services revised the rules relating to patient hospital visitation to ensure that all patients, including same-sex couples, will be accessible to their loved ones while in the hospital. The California Insurance Equality Act requires employers to provide same-sex couples spouses the same coverage as provided to the spouses of heterosexual marriages. Unfortunately, the drafting of the legislation was flawed giving employers a way out by using out of state insurance companies. Legislation is currently pending to fix this problem.

 

We have also seen changes in Tax Law. Prior to 2007, same-sex couples were not permitted to file their state taxes as married couples or gain any of the other tax benefits of being married. This changed in 2007, when the California Franchise Tax Board announced that as of January 1, 2007, domestic partner would be required to file their California state income tax returns using either the married/RDP filing jointly or married/RDP filing separately filing status. As this change applied only to state taxes, Domestic Partners continued to file Federal taxes separately resulting in the filing of two separate sets of taxes. In May of 2010, the IRS issued its decision that California domestic partners must each report one-half of their community income on his or her federal income tax return and may claim one-half of the community tax credits. However, the right to file married or joint taxes and to enjoy the benefits of filing married filing jointly were not recognized or granted. In this, same-sex couples are clearly not treated equally and are prejudiced.

 

There have also been changes in the law relating to the rights of same-sex couples to parentage and custody of their children. This will be the subject of another article.  I encourage the readers of this article to submit questions and/or suggestions for article subjects to me and I will try to address those issues in ongoing blogs or articles.

 

Rivka Israel, Esq. is a local Family Law attorney and can be reached at LavenderLegal@yahoo.com, by telephone at 858- IT’S-EASY (487-3279) or on the web at FamilyLegalEase.com

 

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