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Legal Ease: Same-sex partnership equality - a slow but steady process

Editor's Note: SDGLN is pleased to welcome Rivka Israel to our team with a new legal column that will focus on LGBT Family Law. Feel free to suggest topics for future discussion.

As the recognition of the rights of same-sex partnerships have increased over the past seven years, we have also watched as changes have taken place in state and federal laws

At times, this piecemeal process 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.

This right was soon 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 Facebook page.

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 California. 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 that were validly entered into prior to November 2008 and recognized others without the term "marriage" after that date.
  • Since January 2011, the statute relating to dissolution of domestic partnerships was also 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 their domestic partnership) 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 (DSS) 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 also be treated as step-parents.
  • In 2011, in response to a memorandum by President Obama, the U.S. Department of 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 the spouses of same-sex couples 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 of that year, domestic partners would be required to file their California state income tax returns using either the married/registered domestic partner (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 for federal purposes.
  • 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.

Despite these changes, 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 sense, same-sex couples are clearly not treated equally and continue to be prejudiced against.

There have also been changes in the law relating to the rights of same-sex couples regarding the parentage and custody of their children, but 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 and LGBT Family Law attorney who spent her undergrad years at Bar Ilan University, received her JD from California Western School of Law and was admitted to the California State Bar in 2000. She is active in the community, a member of the GSDBA and writes articles for various local LGBT media. To reach Rivka, you can call her at 858- IT’S-EASY (487-3279), visit her Family Legal Ease website or contact her via email, at lavenderlegal@yahoo.com. You can also follow Family Legal Ease on Facebook.