On Wednesday, September 23, Frederick Hertz, Esq., an attorney from Oakland, CA who authored Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships, and Civil Unions (Nolo Press) will lecture free to the public from 6:15 until 7:30 p.m. at University of Baltimore School of Law in the moot court room. The event, jointly sponsored by the LGBT Bar Association of Maryland, Free State Legal Project, University of Baltimore’s LGBT student group—OutLaw, and Professor Mark Scurti’s class “Sexual Orientation and the Law,” will be followed by a “wedding reception” in the law school lobby.
Gay Life spoke with Hertz about the upcoming event, the “choice” to marry and the key areas of analysis for same sex couples contemplating tying the knot.
What do you plan to address in your upcoming lecture at UB law school?
I’m going to be speaking about the most recent issues that are happening with marriage and marriage equivalents. I can fill people in on the right to marry, but I’m much more interested in the choice to marry if you have the right. When I say marry, I mean not just marriage, but also domestic partnerships or contracts because, depending on what state you’re in, the law is different. Whatever state you live in, you can enter into some form of legal partnership. To me, the question that I’m trying to answer is: What does it mean to do that with your partner of choice?
With laws varying as you cross state boundaries, it seems to get complicated.
Well, right now, there are six states that allow marriage and six states that have marriage equivalent registration in the form of either civil unions or domestic partnerships. There are two or three states that don’t allow anything and then there about 35 states that allow contractual agreements, but don’t have any statewide registration or marriage laws…. So, it’s difficult, but it’s not impossible.
When considering entering into a marriage or other formal partnership agreement, what are some of the key issues that same sex couples should address?
The right to marry is never the duty to marry. One should never marry because one has the right to. Here you have a crucial issue. One has to analyze the consequences of registering, which can be either positive or negative. If you’re in a marriage recognition or equivalent state and one of you is getting state benefits, then there can be tremendous upsides in registering. On the other hand, if you’re getting a benefit because you’re poor, then registering may be a bad idea because your partner’s wealth or income will disqualify you from that. So, looking at benefits is important. The question issue is: What happens financially when you register to marry? Are you going to be sharing wealth? Debt? Retirement? What will you be sharing and do you want to do that sharing? The third set of questions is: If you’re raising children, how does registering or a contract affect legal parentage rights? It can be good or bad. If you want to do an international adoption, then you don’t want to register because you cannot do an international adoption if you’re openly gay. If you want to do a domestic adoption or a second parent adoption or a surrogacy, then it’s usually better if you’re registered. Then, the fourth issue has to do with things that you can address by contract, but often work better if you’re married are registered, such as hospital visitation and end of life issues.
Given that same sex marriage is not recognized on a federal level, what are the laws governing divorce or separation?
If you’re in one of the marriage or “marriage light” states, you have to go through a full divorce. If you’re in a state like Maryland though and you only have a private contract, you don’t have to go through a full divorce. But, if you register in New Jersey or marry in Vermont and live in Maryland, then you’re supposed to get a formal dissolution, but the Maryland court won’t give you one. So, you have two choices. One person moves to a marriage recognition state for six months and gets the dissolution there. Or, you get a court to grant an annulment. Or, you just remain legally partnered until the law changes. And then, you can’t legally partner with someone new. We have tens of thousands of same sex people out there in bigamist relationships. It’s a serious problem.
It seems that legal and financial planning resources are important for same sex couples. Are you finding that these are becoming easier for people to access?
Right now, couples that are registered don’t have federal recognition, so tax ramifications are extremely complicated. Finding an accountant who is familiar with same-sex couples can be extremely difficult. Also, many lawyers who are trained in family law may not be comfortable with gay and lesbian social formations. It’s getting better, but these services tend to be offered by professionals who are not affordable to many individuals.
You just released a book, Making it Legal, which aims to serve as a resource.
Yes, the book is trying to educate people to have the framework to answer the questions. They are so complicated, so we really tried to simplify it in a way that people can understand things….
With freedom, comes challenges. In order to take advantage of the freedoms that we have now, it really requires education and taking these questions seriously to avoid making the wrong decision.
For additional information about Making It Legal, visit www.makingitlegal.net. For details about the upcoming lecture on Wednesday, September 23, visit www.msba.org.