While the quest for marriage equality goes forth, many wonder (justifiably) what the differences are among domestic partnerships, civil unions and marriage.

Throughout the years, dictionaries have struggled to define “marriage.” The 2010 American Heritage Dictionary defines marriage as “[t]he legal union of a man and woman as husband and wife and, in some jurisdictions, between two persons of the same sex, usually entailing legal obligations of each person to the other.” The 2005 online version of the American Heritage College Dictionary defines marriage as “[t]he legal union of a man and woman as husband and wife; a union between two persons having the customary but usually not the legal force of marriage: a same-sex marriage … a close union.” The 1993 hard-copy edition that I found of the same dictionary fails to mention “same-sex marriage” all together. It defines marriage as “[t]he legal union of a man and a woman as husband and wife.”

There are many state and federal benefits that married couples, as opposed to nonmarried couples, enjoy. For example, a married couple can file joint tax returns; inherit a deceased spouse’s property without tax consequence; and use the homestead protection, in which the couple’s home is protected from creditors when one spouse dies.

Partnerships vs. civil unions

The difference between domestic partnerships and civil unions is unclear and sometimes non-existent. A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage or civil union. Domestic partnerships tend to fall into two categories: 1) same-sex couples whose relationship is recognized by the state or local jurisdiction in which they live, or 2) same-sex couples who claim they are in a committed relationship to obtain work-related benefits that are available to heterosexual married employees. It varies but, typically, to obtain status as domestic partners, same-sex couples register with the relevant state or local jurisdiction. Registration alone does not give couples additional rights or benefits, but it is a first step in recognizing their relationship publicly.

Currently, Hawaii, Colorado, Maryland, Rhode Island, Maine, Oregon, Washington, Nevada, California and Wisconsin all have some form of domestic-partnership laws. In addition, cities such as Philadelphia, New York City and San Francisco provide some combination of registration and domestic-partner benefits.

New Jersey and Connecticut recognize civil unions. However, it is important to note that as of October 2010, Connecticut will only recognize marriage. Civil unions are state-sanctioned relationships that convey many of the benefits of marriage without calling it marriage. While civil unions are a start, they do not offer all the rights that marriage offers. Because of this, the New Jersey Supreme Court held that same-sex couples must be given the same rights under civil unions or marriage, even if the word “marriage” is not used.

Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and, most recently, the District of Columbia allow gay marriage. However, due to other states and laws and the federal Defense of Marriage Act, these marriages may not be recognized as valid in other states and are not recognized by the federal government.

DOMA prevents same-sex couples who are married, in a civil union or a domestic partnership from taking advantage of federal protections that are available to all married heterosexual couples. Some of these are the right to take family leave when one partner is ill, the acceptance of Social Security benefits of a deceased partner and joint tax-filing benefits. Last year, President Obama took a small yet important step toward undermining DOMA by signing a memorandum extending benefits such as visitation and dependent-care rights to the same-sex partners of federal employees.

Court decisions

Some see domestic partnerships and civil unions as a step forward. However, others view it as government-sanctioned inequality, comparing the laws to “separate but equal” in our civil-rights history. So far, courts in Massachusetts, California and Connecticut have weighed in on the issue. These courts agreed that “names matter” and that nominal differences were unconstitutional. By labeling a group with a special designation, a state relegates it to second-class status. As the Connecticut court stated, “A mere difference on nomenclature” was a “form of separate but equal segregation” that only seeks to perpetuate and formalize discrimination against gays.

Other courts have reached a different outcome. As mentioned above, in “Lewis v. Harris,” the New Jersey Supreme Court held it was unconstitutional to withhold the benefits and responsibilities from same-sex couples, but did find that the use of the word “marriage” was unnecessary.

One major difference between marriage and either civil unions or domestic partnerships is that due to DOMA, the federal government only recognizes marriage, and so only legally married same-sex couples have legal standing to challenge DOMA.

The terminology for same-sex unions is constantly evolving, and the rights and responsibilities conferred vary widely by jurisdiction. As the fight for equality rages on, leaders in the LGBT community may have a choice to make: Do they push for change, including domestic partnerships and civil unions, or solely push for same-sex marriage? These early judicial decisions show that the jury is still out on which legal strategy would ensure equality.

Angela D. Giampolo, principal of Giampolo Law Group, has offices in Pennsylvania and New Jersey and specializes in LGBT, business, real-estate and civil-rights law. Her website is www.giampololaw.com and she blogs at www.phillygaylawyer.com. Send her your legal questions to angela@giampololaw.com.

As states move slowly to adopt same-sex marriage, couples are turning to other legal mechanisms to govern their relationships. One such tool is the Cohabitation Agreement or “Living Together” Contract.  A Cohabitation Agreement is a legal agreement reached between a heterosexual or same-sex couple who have chosen to live together (cohabitate) but are not married.  It establishes each party’s legal rights and responsibilities in the event of a break-up or death.

For much of American history, courts would not enforce Cohabitation Agreements because the law saw it as an assault on marriage.  Judges did not want to encourage such behavior by allowing the parties the protection of the law.  However, as the norms of society changed, so did the practice of cohabitation.  For example, according to the U.S. Census Bureau, only 523,000 heterosexual couples were cohabitating unmarried in 1970.  By 1995, the amount of cohabitating couples grew to 3,668,000.   Most courts now recognize Cohabitation Agreements by relying on contract law as opposed to family law.  Contract law is concerned with keeping promises between contracting parties and tries to uphold the wishes of parties to a contract, so long as the parties intended to be bound and are contracting for a legal purpose.  In contrast, family law is traditionally concerned with how the state maintains the idea of the nuclear family and its objectives concern how persons should marry, divorce, and care for children.  Since only a few jurisdictions recognize same-sex marriage, same-sex couples should fashion their agreement in terms of an ordinary exchange of contractual promises and avoid the use of family law terms like “alimony, support, guardianship of children, etc.,” to increase the likelihood that their Cohabitation Agreement is enforced.

In 1976, the California Supreme Court in Marvin v. Marvin first recognized the ability of unmarried cohabitants to enter into both oral and written agreements, so long as they were not premised on sexual services. Since Marvin, states have moved towards the acceptance of Cohabitation Agreements, and allowed cohabitants to contract concerning exchange of property and services, so long as the contract is not premised on sexual relations.  However, state to state, courts recognize the scope of these contractual rights quite differently. Some states only validate express written agreements. Other states are willing to entertain oral agreements, or even sometimes imply an agreement. Still, some states don’t recognize Cohabitation Agreements at all, based on the notion that cohabitation without marriage is immoral. Specific to our region, in New Jersey the Court of Appeals recently held in In re Estate of Roccamonte that evidence showing two parties had a martial-type relationship supported an argument that a male partner had promised to support the female cohabitant for life, and the promise was enforceable against the man’s estate.

In practice, Cohabitation Agreements can serve a variety of purposes for the same-sex partners.  Among other things, a Cohabitation Agreement may be utilized to outline each party’s responsibilities with respect to financial expenses associated with living together or specify each party’s responsibility for his or her individual debt.  A Cohabitation Agreement may be entered into as a precaution to protect each party from the cost and stress associated with litigation in the event the partners decide that they no longer wish to live together in the future.  Cohabitation Agreements also permit parties to make arrangements regarding specific assets acquired before deciding to live together and/or assets that they anticipate they will acquire during the period of their cohabitation.  Perhaps most importantly, Cohabitation Agreements allow parties to set forth their agreements regarding child related and parenting issues.  While these agreements are legally binding on both parties regarding financial issues, issues involving custody of children and their welfare are always subject to review by the court system.  In some cases, a written agreement regarding custody may be reviewed or changed by the courts if circumstances or the needs of the minor children have changed since the agreement was written.

To summarize, Cohabitation Agreements should be drafted with care and both parties should have independent counsel to represent their interests.  If constructed properly, Cohabitation Agreements can be a very useful planning tool to provide an extra layer of security, especially in such economically uncertain times.

Tips to Writing a Cohabitation Agreement

1. Talk the issues out at length and come to joint understandings.
2. Regardless of how comprehensive, make sure to cover the basics of property and money.
3. If necessary, have different contracts covering property, support, housing and joint costs – don’t try to cover everything in one contract.
4. A Cohabitation Agreement is personal but exclude personal arrangements such as house chores and cooking.
5. Don’t mention sexual services.
6. Each party should obtain independent legal counsel before executing the agreement, especially if there is a large sum of money and property involved or if bargaining power is not equal.
7. Agree in advance to mediation as the method of dispute resolution.
8. Modifications of a Cohabitation Agreement should always be in writing and drafted by an attorney (especially if the modifications are significant).
9. The Cohabitation Agreement may need to be notarized depending on what state the parties reside and whether the agreement contemplates real estate.
10. Don’t prepare a Cohabitation Agreement if one or both parties are married to someone else.

For additional resources on cohabitation please call my office at 215.645.2415 or contact the following organizations.

Organizations

Alternatives to Marriage Project
P.O. Box 991010
Boston, MA 02199 USA
Phone: (781) 793-0296
Fax: (781) 394-6625
URL: http://www.unmarried.org/
E-Mail: atmp@unmarried.org

American Association for Single People (AASP)
415 E. Harvard Street
Suite 204
Glendale, CA 91205 USA
Phone: (818) 242-5100
URL: http://www.singlesrights.com
E-Mail: unmarried@earthlink.net
Primary Contact: Thomas F. Coleman, Executive Director

Focus on the Family
Colorado Springs, CO 80995 USA
Phone: (719) 531-3328
Fax: (719) 531-3424
URL: http://www.family.org/

Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500
New York, NY 10005-3904 USA
Phone: (212) 809-8585
Fax: (212) 809-0055
URL: http://www.lambdalegal.org

ONE SIZE DOESN’T FIT ALL!

Like people, every business is unique.  Having standard legal documents that are meant to fit every business is similar to a person filling their entire wardrobe with “one size fits all” clothing.  Realizing that starting and maintaining a business is costly, a business owner should not try to save money where legal compliance is involved.

COST!

On the surface, it appears that a business is saving money using template legal forms.  However, templates will not provide a business with tailored and/or compliant legal documents and could end up leading to unavoidable litigation fees down the road.  Litigation costs are always very expensive and typically the main reason why a company declares bankruptcy.

Having an attorney handle the transactional needs of your business allows for each transaction to be tailored to the exact specifications of the business needs and will save money in the long term.

COMPLICATED LEGAL ISSUES!

The law is complicated; lawyers spend nearly a decade in school to become a lawyer and have constant, on-going education throughout their career.  An attorney will explain the complex legal options to you and put all the legal language into clear and understandable “real world” language.

FORMING AN ENTITY NEEDS TO BE DONE RIGHT TO BE EFFECTIVE!

Forming an entity is a great way to protect you and your family from various liabilities however, the process of both choosing an entity type and forming the entity is extremely complex.  If it is done incorrectly limited liability protection may be lost without the company realizing it.  Retaining an attorney to walk you through the process guarantees that the formation process will be done correctly.

FAMILIARITY WITH BUSINESS AND TRANSACTION!

Retaining an attorney to draft your business documents allows for a trustworthy attorney to become familiar with your business and the business transaction.  If an entity finds itself in litigation over a transaction, unfortunately, it cannot call on a canned website to represent them.  The entity will be better off if they have an attorney who is familiar with the structure and purpose of the business.

1. Do our employee benefit plans extend to our adopted child?
2. Do foreign countries treat LGBT parents differently when seeking a foreign adoption?
3. If we choose to use a surrogate, are we fully aware of the surrogate’s rights to the child?
4. How do adoption agencies view LGBT couples when deciding a proper home for a child?
5. Are our estate planning documents sufficient to provide for a newly adopted child?
6. We are a lesbian couple and one of the partners will be carrying the child, what rights do both the sperm donor and the non-carrying partner have to the child?