Using Written Contracts in States that do not Recognize Same-Sex Marriage

I spent this morning in a stimulating discussion with Dean Suzanne Reynolds' Family Law class at Wake Forest University School of Law. The students' questions were tough and insightful, and I enjoyed my experience immensely. The topic of the discussion was written contracts for same sex couples.

Such written contracts are useful, but parties' contracts can not totally substitute for marriage rights. For example, agreements can not provide for alimony. Likewise, courts are not bound by agreements regarding child custody and support.

Further, agreements do not bind the government. So, tax consequences are out of the parties' hands. Also, parties may still be ineligible for government benefits such as Social Security. Finally, parties may still have no standing for claims such as wrongful death or loss of consortium.

Parties can agree about the ownership of property. So, essentially, agreements substitute for equitable distribution. Agreements will provide for the acquisition, ownership, and dissolution of joint property.

The preface to the agreement should do three things. First, the preface should show how the property was acquired. Second, the preface should show what property will continue to be separate property. Third, the preface also should list the property that will be held jointly.

If one partner already owns the property, there may be negative tax consequences for the other partner. There may be a presumption that the joint property was a taxable gift from one partner to the other.

To avoid the presumption of a taxable gift, the agreement should show the initial contribution that each party made to the purchase of the property. The initial contribution may be an amount paid for the down payment, or sales proceeds from the party's other property.

Agreements should set out how the property will be held and managed. The parties may establish a joint account solely for joint expenses. They may agree to contribute a certain amount or a certain percentage to the joint account. The agreement may provide for sharing the cost of upkeep, maintenance, repairs, and improvements.

Agreements should set out how the property will be dissolved. Many events may trigger dissolution of the joint ownership. The parties might sell the property while remaining a couple. Due to aging, illness, or some other factor, one party may become incompetent. One party may predecease the other. The agreement should provide for each of these contingencies.

One party may be forced into bankruptcy. Since property owned by unmarried parties is held jointly or in common, instead of by the entireties, the property is vulnerable to a party's separate creditors. The agreement should provide a way for the other party to buy out the bankrupt party's share of the property.

Most contentiously, the parties may break up. The agreement should set out who gets to choose to stay, and who has to go. The one who has to go may have to continue to pay the property's joint expenses until the property is sold. The one who gets to stay may have to give the other party some credit for the fair rental value of the residence. Or, the one who stays may have to buy the other one out. The agreement may provide that the leaving partner has no financial obligation if the staying partner brings in a new girlfriend/boyfriend.

Generally, agreements give one party the right of first refusal to buy the other out. The agreement will have to set out how the property will be appraised. If the right of first refusal is not exercised, the agreement should set out how a Realtor will be selected, how the listing price will be set, and when an offer will be accepted.

To keep the parties' private affairs out of the public record, agreements should include recourse to mediation or arbitration, or both.

Agreements are not the last step. Parties may decide to be married, civilly united, or domestically partnered. While not recognized here and now, when recognition comes, these events may establish an early beginning date for tax purposes or government benefits. However, parties must be careful not to become "wed-locked:" unable to dissolve their marriage, union, or partnership.

Parties may decide to establish an inter vivos trust to substitute for alimony. Such trusts are sometimes appropriate when one partner earns substantially more than the other. However, unlike alimony, trusts are not as easily modifiable.

Parties must ensure that they actually title joint property jointly. Joint property may include real estate, time shares, vehicles, bank accounts, financial instruments, retirement accounts, life insurance, and closely-held businesses.

Parties may wish to execute reciprocal wills, living wills, powers of attorney, and health care powers of attorney.

Parties may have to do something to protect their children. They may consider adoption, second-parent adoption in another state, artificial insemination agreements, sperm donor agreements, parenting agreements, or "friendly" lawsuits.

Clearly, these agreements can become quite complicated. This general outline is not intended as legal advice, nor should it be relied upon as such. If you are considering whether an agreement might be right for your situation, I would be happy to discuss your particular situation with you in a private consultation; just call me to set up an appointment. Also, I welcome general comments and questions in the public comments section below.

New Web Site

I have launched a new web site for my law firm. You can check it out at www.weidemannlawfirm.com.

After Amendment One, How Can Families Protect Themselves?

The passage of Amendment One in North Carolina last week was a setback for the protection of same sex and other unmarried families. While same sex marriage was already illegal by statute, Amendment One further prohibits civil unions and domestic partnerships. Amendment One will prohibit same sex marriages, civil unions, and domestic partnerships in North Carolina, and it will prohibit the recognition of out-of-state marriages, civil unions, and domestic partnerships. Yet, same sex and other unmarried families can still employ some legal means to protect their families.

With a married couple, any child born to a party of the marriage is presumed to be the child of the spouse. This presumption does not apply to unmarried couples. The part of the couple with a genetic connection to the child is presumed to be the parent. The part of the couple who gave birth to the child is presumed to be the parent also. With modern alternative reproduction technology, the genetic parent and the birth parent are not necessarily the same person. However, the other parent in an unmarried couple has no automatic protection in North Carolina.

Parents can pursue some in-state remedies, although they are limited in their effectiveness. The genetic or birth parent can name the other parent as guardian in a will, but wills can be revoked, and wills only speak at the time of death. The parents can go through a legal proceeding called a “standby guardian,” but that only becomes effective when the genetic or birth parent is incapacitated. The only other protection for unmarried parents in North Carolina is the legal doctrine of in loco parentis or de facto parentage, which means that a person who has acted as a parent has standing to sue the genetic or birth parent for custody. These are often highly-contested cases. None of these options confers the full, permanent rights of parenthood.

For greater protection, parents may choose to look outside of North Carolina. While North Carolina’s case law has prohibited same sex couples from adopting, other states do allow same sex couples to adopt. These adoptions may be done as full, second-parent adoptions or as step-parent adoptions. Also, states that have adopted the Uniform Parentage Law may give couples a parentage order, decreeing both parties to be parents of the child. However, since step-parent adoptions and parentage orders are predicated upon a couple’s relationship, Amendment One may be construed to void them. A full, second-parent adoption may be preferable to a step-parent adoption or a parentage order.

Unmarried partners may also protect their own relationship in several ways. The partners may enter into a living together agreement. Similar to a prenuptual agreement, this agreement spells out in advance how the parties are to maintain their finances, and how they are to divide property if there is a split. Partners may own title to houses, cars, and other property as joint tenants with right of survivorship. They may also name each other as beneficiary in financial instruments such as individual retirement accounts, mutual funds, or life insurance. They may name each other in their wills, powers of attorney, and health care powers of attorney. On the one hand, these protections are limited in comparison to the rights of marriage, but on the other hand, they have enjoyed long usage and their effectiveness is generally certain.

Even employing all of these legal protections is not a complete substitute for marriage, civil union, or domestic partnership. For example, because of the federal Defense of Marriage Act, same sex couples cannot avail themselves of the tax benefits of married couples. For the same reason, same sex couples cannot enjoy the spouse’s benefits conferred by government programs. Some protection is better than none at all, however.

This article has only skimmed the surface of a complicated area of law. This is an area of law that changes quite frequently. It is also an area of law that depends a great deal upon individual clients’ individual circumstances. Therefore, this article is not intended to be, and should not be taken as, legal advice, nor does it establish an attorney-client relationship. For legal advice tailored to your specific circumstances, please contact the Weidemann Law Firm, P.C., for a confidential appointment.

Billie Jean and Child Support

"She says I am the one, but the kid is not my son."

-- Michael Jackson, "Billie Jean"

Many times, in legal cases that involve children, a party finds it advantageous to dispute paternity.  Sometimes the father wants to sing, like Michael Jackson, "The kid is not my son," especially when there is child support money to be paid.  Other times, the mother wants to dispute fatherhood, such as when the supposed father wants custody or visitation.  Depending upon the case, it may be difficult or impossible to raise the issue of paternity.

In many ways, paternity should be an easier situation than the law makes it.  The law on paternity mostly predates genetic testing, and it has not kept up with changing technology.  Now it is so easy and so inexpensive to determine paternity accurately, the law should take more advantage of DNA testing.  Last year, the General Assembly passed some amendments that made genetic testing easier; these amendments became effective on January 1.

Prior to these amendments, it was not clear how to get DNA testing after the fact, or even if it were possible at all.  Rule 60 of the Rules of Civil Procedure imposes strict requirements for overturning established orders, including paternity orders.  Now, the General Assembly has created three motions:  To set aside paternity, to set aside affidavit of parentage, and for relief from child support order.  The motions are written to work together.

With all of these new motions, the first step is to establish the necessity for the motion.  Parties cannot file these motions at will.  If the motion is not filed in good faith, the moving party could be charged with the other party's attorney fees.  The moving party has to establish that the original order was obtained by fraud, duress, mutual mistake, or some other excusable neglect.  It is uncertain how high the court will set this bar.

After the moving party establishes a basis for one, the court can order DNA testing.  Parties who do not cooperate in the genetic testing can be found in contempt.  If DNA testing proves that the party is not the biological father, the court can (but does not have to) make the mother pay the cost of the test.

The motion or claim for relief from child support only suspends pending child support payments under a few circumstances.  If the recipient of the child support is the mother, then the child support payments are not suspended.  If the recipient is a third party or the State, then the payments are suspended.  For this reason, motions should be filed as soon as possible, to avoid child support arrearages accruing.

The motion or claim for relief from child support order must be "filed within one year of the date the moving party knew or reasonably should have known that he was not the father of the child."  The other two motions do not appear to have time limits on them.  However, it would be best to file all of these motions as soon as possible, to avoid a possible common-law defense of laches.

The General Assembly intentionally limited the effect of the new amendments.  The amendments do not overturn the old legal presumption that a child born to a married woman is the child of the husband.  A party cannot file a motion or claim for relief from child support order if he knew that he was not the father when he acknowledged paternity, adopted or legitimated the child, or prevent the biological father from exercising his rights.  Nevertheless, it seems reasonable that many parties will avail themselves of this new motions.

The bottom line question for many people will be, what happens to the money?  Any child support due and payable as of the date of the motion is still due and payable, even if the moving party turns out not to be the father.  Any child support paid to the State is gone.  Only if the mother used fraud or duress in obtaining the original order can she be required to repay the already-paid child support.

If you are involved in a case where paternity is an issue, give me a call.

You can read SL2011-0328 on the General Assembly's web site.

Happy New Year's Resolutions

Every year, as January 1 approaches, I get excited about the chance to start over, to start the new year with a clean slate, to make some changes.  If you are like me, part of this process involves making a list of new year's resolutions.  I would like to suggest that you add the following to your list of resolutions:

• A will.  A will disposes of your property if you die.  If you do not have a will, then your property will be distributed according to state law, which may not be in line with your wishes.  A will also names your executor and gives your executor certain powers; this makes probating your estate much easier.  If you have under-aged children, you can nominate a guardian for them.  While every person should have a will, people with children especially should have a will.
• A living will.  This document states your wishes about being kept alive on life support.  If you do not want to be kept alive on life support indefinitely, then you should have this document.  If you do not, then your doctors will feel obligated to do everything possible to prolong your life.
• A power of attorney.  A power of attorney gives someone the power to act on your behalf when you cannot do it yourself.  If you were in a catastrophic accident and were facing months in the hospital, who would deposit your checks, pay your bills, and otherwise handle your financial affairs?  If you had a power of attorney, it would be your attorney-in-fact.  Without a power of attorney, someone would have to petition the court to have you declared incompetent and have a guardian appointed for you.  I have been involved in family fights over who gets to be the guardian -- these fights began before I became a practicing attorney, and I suspect that they will continue long after I retire.  A power of attorney would prevent these conflicts in most cases.
• A healthcare power of attorney.  Like your power of attorney, your healthcare power of attorney gives another person the power to act on your behalf when you cannot.  In the case of the healthcare power of attorney, you are delegating the power to make medical decisions, but only if you are not able to make or communicate those decisions.  Without a clear healthcare power of attorney, hospitals have a difficult time figuring out whom to talk to when they cannot talk to you.  Your "next of kin" (however they decide to define that) may be elderly, or out of state, or estranged.  In non-traditional families, your significant other may be shut out of the hospital entirely. 

The new year is an excellent occasion to get these documents done.  If you already have them, the new year is also a good time to have them reviewed for changes.  Please do not download a program or a kit and try to do it yourself.  The form may not be the correct one for the state you live in, or it may be outdated.  I was involved in a situation some years back in which we had to go through a guardianship proceeding, even though the clients had done a power of attorney on their own, because they used the wrong form and the power of attorney was not valid.  Considering the risks at stake, and considering how reasonably these documents can be done in an attorney's office, there is just no reason not to have an attorney take care of these for you.

I would like to make it even easier for you to make -- and keep -- this new year's resolution.  If you make an appointment for the month of January to see me about your estate plan, I will take one hundred dollars off my normal fee.  Go ahead and make that appointment today!

Professor Accused of Viewing Child Pornography on Flight

This news story would make one of those dumb criminals lists if it were not so awful:

A University of Utah professor pleaded not guilty today in an East Boston courtroom to charges that he viewed child pornography on his laptop while flying from Salt Lake City to Boston.

What could account for this professor's behavior?  Stupidity?  Compulsiveness?  Arrogance?  An unconscious desire to get caught?

However, this is the part of the article that caught my attention:

Prosecutor Erik Bennett said that a passenger seated behind Smith’s first-class seat on the Delta flight on Saturday took a picture of what Smith was doing and sent a text message to his son with the picture, asking him to contact Massachusetts police.

Given how broadly child pornography laws are written, it seems that the passenger and his son probably broke the law.  Crazy, isn't it?  By looking at the professor's laptop, the passenger is guilty of viewing child pornography.  Since he took a picture of the picture on the laptop, he is also guilty of producing child pornography.  Since he sent it to his son, he is also guilty of disseminating child pornography.  The son likewise is guilty of receiving -- and viewing -- child pornography.  Crazy.

Obviously, the Boston police have no intention of arresting these good Samaritans.  But, how many people may find themselves in a similar situation, and they do not get involved because they do not want the authorities to falsely accuse them of somehow being involved in the crime?  In this way, poorly written laws fail to protect children because the laws scare away people who might come forward and report crimes against children.

The abuse of children is a terrible evil.  However, laws meant to protect children are often haphazardly written.  Consequently, the laws often do a very poor job of protecting children.  Perhaps one good thing that can come out of the recent attention on child sexual abuse is that we will give these laws a thorough going-over with an eye toward improving them.  Such a review is already under way in Pennsylvania, where legislators are looking at improving the child abuse reporting law.

See the original article here:

http://www.boston.com/Boston/metrodesk/2011/11/university-utah-professor-due-east-boston-court-face-child-porn-charges/83M6ssM6eLLfcwr2Ng44AN/index.html

Does a Bad Economy Cause Child Abuse?

As many of you know, I represent parents against allegations of abuse, neglect, and dependency.  These cases arise when the Department of Social Services seeks to take children from their parents.

Some of the most heart-breaking cases that I get are "shaken baby" cases.  This vivid term is something of a misnomer.  It actually involves any physical injury to a child, especially a child too young to communicate.  Sometimes these injuries result in death, and sometimes they result in permanent disfigurement.

Yet, these cases are disturbing to me for a number of other reasons.

First, health care providers and police now seem predisposed to see any injury as evidence of a criminal act.  A child is injured, therefore someone must have intentionally caused the injury.  There is a medical definition for non-accidental injury, but it is ambiguous enough to fit whatever conclusion the doctor is predisposed to reach.  For instance, I used to think that a "cluster of injuries" meant two or more injuries, of the same kind, in different places or in different different stages of healing.  Now it seems that doctors can describe any two injuries as a cluster.  Sometimes it seems to me as if there is no such thing as an accident any more.

Second, investigators use what seem to me to be questionable methods to build their criminal case.  Often, they will sidestep their legal duties and get the social worker to ask their questions for them.  They will try to get the parent to state that no one else has been with the child for a certain period of time.  That makes the investigator's job easier because it narrows down the possible suspects, hopefully to only one.  Then no further investigation or evidence is required:  The police have a hurt baby, a doctor who says it is abuse, and only one person who had custody of the child.

Third, these cases generally move on two tracks with conflicting goals.  In criminal court, the police and district attorney try to punish the perpetrator.  In civil court, the Department of Social Services tries to take custody of the child away from the parents.  In every case in which I have been involved, this two-track phenomenon has caused a mess.  The civil case drags on because we want to see what happens in the criminal case.  The parents cannot make progress on their case plan because their attorneys have warned them not to make incriminating statements.  If the goal of civil court is to reunite children with their families when that can be done safely, then the intervention of criminal authorities is unhelpful, to say the least.

This article from the Winston-Salem Journal suggests that there may be an increase in child abuse, and that increase may be tied to the stress of a bad economy.  I am not inclined to agree.  I think that an increase in child abuse cases being reported comes largely from doctors being more vigilant and reporting more cases to the authorities.  Also, my experience is that child abuse comes not from economic status but from ignorance.  Inexperienced parents do not know what to do with a crying baby, and then they get frustrated, and then they do the unthinkable.  Rather than blaming the economy and shrugging the problem off, we could be teaching young people how to be good parents and preventing the problem in the first place.

http://www2.journalnow.com/news/2011/sep/19/wsnat02-new-look-at-child-abuse-ar-1406178/