The Legal Intelligencer | Lawyers Cautioned on ‘Cashing In’ on Gay Marriage Ruling

By | July 17, 2015

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Last week, a Philadelphia judge denied the dissolution of an out-of-state civil union between two women who have been separated for more than a decade, dashing the pair’s hopes that Pennsylvania’s legalization of same-sex marriage last year would pave the way for their divorce. It’s issues like those that have family law lawyers warning against just any attorney claiming expertise in the area of LGBT legal affairs.

The Philadelphia judge determined last week that the union wasn’t a marriage that could be dissolved, according to one of the women’s attorneys, Tiffany Palmer of Jerner & Palmer. Both women have moved on from their relationship and are looking to marry their new partners—a prospect that seemingly was made easier by the 2014 Pennsylvania federal case of Whitewood v. Wolf and the U.S. Supreme Court’s ruling last month in Obergefell v. Hodges. But after a year of waiting for a ruling, it seems there are still issues for the courts across the state and the country to figure out.

In the meantime, attorneys across Pennsylvania are marketing their services to the LGBT community for issues including divorce, estate planning and custody matters.

Lawyers in Pennsylvania haven’t seen a huge uptick in family law work in light of Obergefell’s legalization of same-sex marriage nationwide, but the test cases that have been filed in the last year since the state legalized gay marriage have shown thorny legal issues still persist.

There was a slight surge in legal work in Pennsylvania shortly after Whitewood came down and the couples who had already wanted to divorce, but couldn’t, began divorce proceedings, family law attorneys said. But for those couples that got married right after Whitewood, particularly those who were together for decades prior, divorce filings haven’t started coming in—yet, those family law attorneys said.

Some firms looked to add to their family law practices in the wake of the Whitewood decision. In the four months after that ruling, LGBT lawyer Angela Giampolo was hired by three firms, including Allentown’s Gross McGinley, to consult on how to create practices sensitive to the issues facing the LGBT community.

Conor Corcoran, a Philadelphia lawyer who has handled everything from patents to divorce cases over the years, bought the website URL adamvssteve.com just after the Whitewood ruling but didn’t launch it until after Obergefell came down. Now he is advertising himself as the nation’s first LGBT divorce lawyer.

“You are probably seeing a little bit of that right now, what I would call jumping on the bandwagon as a result of the decision a few weeks ago,” said family law attorney Dan Clifford of Weber Gallagher Simpson Stapleton Fires & Newby.

While some attorneys have said the legalization of same-sex marriage makes LGBT divorces just like any other, Clifford said it might not be that simple.

Before same-sex marriage was legalized, there was a small group of family law lawyers that would receive referrals even from other family law attorneys who viewed LGBT issues as a specialty.

“With [this] new decision, they may no longer think they have to hand them out,” Clifford said of referral cases. “It has been a specialty up until now because we have been forced to litigate financial issues between same-sex couples in civil court.”

Now that these cases are moving to family court, family law attorneys are waiting to see how judges from the state’s philosophically diverse counties will apply traditional family law principles to LGBT cases.

Clifford said there will be an issue of timing. A judge in one county may be sympathetic to an equitable distribution argument in an LGBT divorce that the marriage didn’t really start just when marriage became legal a year ago, but 20 years ago when the couple would have married if they could have. Another judge may stick to the statutory requirement of the actual date of marriage, he said.

Pittsburgh family law attorney Mary Sue Ramsden of Raphael, Ramsden & Behers said there will definitely be some “creative lawyering” going on, making for contentious cases when they do start popping up. The real clarity on these issues won’t happen, however, until the state legislature makes some changes or the appellate courts begin weighing in, Ramsden said.

The contentious issues, attorneys said, will be things like how to split a retirement account that was earned over the course of a 20-year relationship that only included one year of marriage.

For Giampolo, that has been handled through premarital agreements.

“We have been watching straight people screw it up for so long” that gay couples are concerned marriage might change their relationship and they are looking to protect themselves in the event of a divorce, Giampolo said.

She has done three premarital agreements for straight couples in her entire career, but has done one a week lately for gay couples who are thinking about getting married.

“Those that have not yet gotten married really should be talking to lawyers who have experience in this area about the premarital agreements because you can address these issues on the front end as opposed to fighting about it on the back end,” Ramsden said.

For Palmer, experience representing the LGBT community is less important than family law experience. She said these cases present unique challenges in estate planning, tax matters and benefits issues.

“Some of the more complicated financial issues that come up in divorces generally, are now applicable for same-sex marriages,” Palmer said.

Her client stuck in a decade-long separation isn’t unique either. Palmer said the Mazzoni Center has at least four other cases like that. Helen Casale of Hangley Aronchick Segal Pudlin & Schiller said the issue is that the push for same-sex marriage was all about the fact that civil unions didn’t equal marriage. And now the Whitewood and Obergefell decisions are silent on the issue of civil unions, Casale said.

The most uncertain legal area is parentage, Palmer said. She and Clifford noted it is still unclear how Pennsylvania courts will address who has rights to the children and whether they were “born out of the marriage.” Palmer said she still advises same-sex clients to cross-adopt.

Casale agreed that cross-adoption is still essential. While Pennsylvania law assumes a child born to a married couple, even through an unknown sperm donor, is the child of the two married people, Casale said it is not clear whether the courts will apply that doctrine to same-sex couples. So while it may seem unfair to have to cross-adopt, Casale said it will at least be easier and cheaper given it will be a step-parent adoption rather than a second-parent adoption.

Issues involving parentage and equitable distribution of assets in same-sex cases will dominate the courts for at least the time being until they get sorted out, Casale said.

“A lot of the cases that we are filing now essentially are test cases,” Palmer said, adding that attorneys filing such cases should work in conjunction with experienced LGBT advocates such as Lambda Legal, the National Center for Lesbian Rights, the American Civil Liberties Union or the Mazzoni Center. “What happens at the appellate level could impact everyone else.”

Corcoran said he has mainly seen “exploratory” calls from people who have seen his new website, the name of which spoofs the anti-gay tagline “God created Adam and Eve, not Adam and Steve.”

“The numbers just aren’t there, but they will grow,” he said of divorces in the LGBT community.

Corcoran said he isn’t serving as a referral service, but rather will look to be barred in the 35 states that have reciprocity with Pennsylvania and work with local co-counsel in those states in which he isn’t a member of the bar.

Longtime family law attorneys like Clifford and Giampolo cautioned newcomers to the LGBT family law bar regarding jumping into these cases. Clifford noted the divorce laws are different across the 50 states and even experienced attorneys refer matters out when not familiar with a jurisdiction. Casale said there will be those who look to “cash in” on Obergefell, but she said it was “irresponsible” to immediately offer services in this area unless attorneys educate themselves on nuances of LGBT family law issues.

Giampolo said anyone can get into the field, particularly now that the same laws apply to straight or gay couples. But she said the LGBT community is known for shopping “authentically.”

“So other lawyers in this space for years don’t have to be the watchguard over firms or individual attorneys that, from an opportunistic standpoint, are trying to label themselves as an LGBT firm. The LGBT community will just do that,” Giampolo said.

Read more: http://www.thelegalintelligencer.com/id=1202732209821/Lawyers-Cautioned-on-Cashing-In-on-Gay-Marriage-Ruling#ixzz3g9ujaPMn

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