Law Office Management
Nov. 2, 2008
Gay Marriage Opens New Space in Family Law
Marital-law and domestic partnership experts both face challenges in an evolving practice.
By legalizing gay marriage, the California Supreme Court created new challenges for both marital-law practitioners and those specializing in nonmarital partnerships for same-sex couples. And adjusting to the changes, lawyers say, can seem like starting a discipline from scratch. "The main challenge is that the law has changed, and over the last ten years different law has applied at different times," says David A. Fink, a partner at San Francisco-based Nachlis & Fink who specializes in family law mediation, private judging, and collaborative law. "Whether a [same-sex] couple has been together 5 years or 25 years, you can't make sense of all the legal rights and obligations." Experts in nonmarital unions have been flooded with inquiries from both existing and prospective clients. Even fellow lawyers call with questions. But the answer is often the same: The ruling did not add any significant, substantive rights to those already granted in 2005 in California's registered domestic-partnership law (other than the right to be legally married, of course). And the federal government still does not recognize same-sex couples as married for tax and immigration purposes. "With same-sex couples, there is a whole other layer of complexity that I think rightly intimidates people," says Stefan Spielman, an associate at the San Francisco offices of Goldstein, Gellman, Melbostad, Gibson & Harris. "At this point it's not clear if [giving legal advice on gay marriage] will become a subspecialty, or something that most qualified family lawyers can handle." Managing same-sex couples' expectations about dissolving a relationship is also turning out to be a challenge. For example, though a divorcing heterosexual couple owes no federal taxes on property transfers incident to the divorce, a homosexual couple may. (The 1996 Defense of Marriage Act prohibits any federal agency from recognizing a marriage that is not between a man and a woman.) In addition, few family law attorneys have experience handling property disputes that involve lengthy premarital cohabitation periods that are common in the gay community. A new, clear understanding of how civil courts treat property and debt is now vital for family law attorneys who want to represent same-sex couples, says Sandra Blair, a San Francisco-based sole practitioner. In fact, outside expertise may be required. "You leave yourself open to being sued for malpractice if you don't hire a forensic accountant for a same-sex marriage or registered domestic-partnership dissolution," says Roberta Bennett, a lecturer and founding partner at Bennett & Erdman in Los Angeles who gives seminars on the subject. To secure the broadest possible protections over the widest geographic area, some attorneys--such as Deborah Wald, founder of San Francisco-based Wald Law Group--advise same-sex clients to both marry and register as domestic partners. Bennett also urges same-sex couples with children, including lesbian birth mothers, to go through a "stepparent" adoption. Bennett says that even if both parents are named on the birth certificate, the federal government may rule that the death of a nonbiological parent does not qualify the child for Social Security payments. To draw new business from gay couples, traditional family law practitioners may want to get a nod from within the gay community--from a lawyer or from an organization such as Lambda Legal or the National Center for Lesbian Rights. "My endorsement is going to carry some significant weight," says Cheryl Sena, a family law specialist in San Francisco who is frequently quoted on the legal rights of same-sex couples. Without federal recognition of same-sex marriages, gray areas in the law are likely to persist. But family law attorneys must continue to counsel their clients as best they can. "I am constantly asked questions for which no lawyer has [clear] answers," says Oakland sole practitioner Frederick Hertz. "I've never been paid so much to tell people 'I don't know' in such fancy ways."
Usman Baporia
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