Attorney Vaughn-Martel named in 2009 Boston Magazine list of Super Lawyers/Rising Stars

I was pleased to be named a Rising Star in Boston Magazine’s 2009 list of Massachusetts Super Lawyers!

Thank you to my clients and colleagues for this honor.  Vaughn-Martel Law strives to provide dynamic and effective legal services and counseling to our diverse group of clients.  We continue to serve individuals, families, and small businesses throughout the Commonwealth (and beyond) in matters ranging from family planning, adoption, estate planning, and divorce and separation.

Happy holidays and best wishes for the new year!

Washington Family’s Plight a Reminder of the Importance of GLBT Estate/Financial/Health Planning

As reported by the Miami Herald, a federal court in Miami has thrown out the lawsuit of a Washington State lesbian who was denied access to her dying partner at Jackson Memorial Hospital.

On February 18, 2007, Janice Langbehn and her partner Lisa Pond were in Florida together with their three children while waiting to set sail on a Caribbean cruise for gay families.  Before boarding, Janice’s partner Lisa suffered a fatal brain aneurysm and was rushed to Jackson Memorial Hospital in Miami, Florida.

A social worker refused to allow Janice to see or visit with Lisa, her partner of 17 years, who died the next day.  The social worker would not allow Janice access to her partner, citing the fact that Florida is “an anti-gay state”.  Jackson hospital has denied that Janice was discriminated against, and continues to defend the conduct of its employee.

Langbehn, with the help of Lambda Legal, a national gay-rights group, sued the hospital. The case received publicity around the country, and was thrown out Tuesday.  According to Beth Litrell, staff attorney for Lambda Legal:

“The hospital took the position that we thought was pretty extreme — that it has no duty, no legal obligation, to allow visitors [of any sort] in the hospital.  The court agreed … We’re obviously devastated and disappointed in this decision,” Littrell said.  “It highlights how vulnerable same-sex couples and their families are.”

I encourage all my clients to execute a Health Care Proxy as part of their comprehensive estate planning.  The importance of advanced financial and health planning for GLBT couples is even more important.  For example, by executing a valid Health Care Proxy, you can appoint another person as your health-care decision maker in the event that you are unable to make or communicate health-care decisions on your own behalf.

Marriage Alternatives and Contracts that Protect Same-Sex Couples

Both same-sex and opposite-sex couples in Massachusetts who choose marry are essentially entering into a binding contract with each other and the state.  The state sets the terms of this marital contract, which dictates property ownership, inheritance, separation, property and asset division, spousal support, and numerous other benefits and obligations.  Those who wish to opt out of any these default provisions must execute a valid written prenuptial agreement.

But there are many same-sex couples who will choose not to get married, for example:  where marital status would jeopardize a partner’s military status; where marital status would jeopardize adoption status; where the couple plans to purchase property or live together before becoming married, plans to relocate out of state, or simply feels that their relationship is fulfilled without the status of marriage.

Couples who choose not to marry can find themselves without a road map any without any legal remedy at the end of a relationship.  Who gets the family pet?  Who will pay off the Pottery Barn credit card?  How will you split the equity in the Jamaica Plain condo?  Who is entitled to the rental income from the Ogunquit beach house?  Who will keep the Subaru and who will pay for it?

Your attorney can assist you in negotiating, preparing, and properly executing some, all, or variations on the following legal instruments:

1. Property Ownership Agreement. A property ownership agreement is an absolute must for two people who plan to purchase real property together.  A property ownership agreement clearly states the initial contribution of each co-owner, the percentage ownership interest of each co-owner, each co-owner’s obligation to monthly mortgage/tax/insurance payments, how rents will be collected and allocated, and spells out what should happen to the property in the event of a split-up.
2. Domestic Partnership Agreement. Much like a prenuptial agreement, a domestic partnership agreement spells out and defines the parameters of a relationship, including how property, income, and debt obligations will be allocated during the relationship.  A domestic partnership agreement can also allow a couple to define the specific rights and obligations of the parties in the event of a breakup.  A domestic partnership agreement can assist couples in issues ranging from the division of bank and investment accounts, allocation of personal property, custody of family pets, and debt obligations.
3. Last Will & Testament. Married or not, a will is not optional.  For unmarried partners, the law makes no provision for your partner upon your death.  And for married spouses without a will, your spouse may be forced to share your estate with your parents upon your death.  A last will and testament can appoint your partner as guardian of your minor children, spell out your burial wishes, clarify your intention to provide for your same-sex partner, and appoint your partner as executor of your estate.  Couples who anticipate a will challenge or hostile family members need to take even greater precautions in drafting and executing their wills.
4. Power of Attorney. A general durable power of attorney allows you to grant your partner the authority to handle transactions relating to your finances and property on your behalf.  The durable power of attorney is a powerful document that grants your partner tremendous power to handle your affairs even if you are deemed to be incapacitated or unable to handle your affairs.  This can avoid the necessity of a costly guardianship proceeding and help prevent siblings or parents from taking control if you become unable to manage your own property and financial affairs.
5. Health Care Proxy. A validly executed health care proxy allows you to name your partner as your health-care decision maker in the event that you are unable to make or communicate medical decisions on your own behalf.  Absent a marital relationship (and even in instances where states or medical personnel are hostile to your marriage), your siblings, parents, or other next-of-kin will likely be consulted over the objection of your partner.
6. Parenting Agreement. A court always retains the authority to make decisions with regard to child custody, visitation, and child support in the event that parents cannot agree among themselves.  A court’s determination as to the best interests of the child will supersede any contract between parents, but it can still be helpful for unmarried (or married) couples to spell out their expectations with respect to child rearing, custody, visitation, and support in a parenting agreement.  This can be done at any time, from the time of birth up to a couple’s decision to part ways.
7. Second-Parent Adoption. If your same-sex spouse or partner has given birth to a child, you may consider yourself to be that child’s parent in every conceivable way – except that legally, you aren’t.  A second-parent adoption creates a permanent and universally recognized parent-child relationship between a child and a parent who is not otherwise related to the child.

Each of the above legal instruments can be modified and drafted to suit your unique relationship, and your family attorney can assist you and your partner in assembling any or all of the above.

The Importance of Co-Parent Adoption

Adoption is the legal process by which a permanent and universally recognized familial relationship is established between an adult and a child who are not otherwise related.

The distinguishing characteristic and legal requirement of a joint petition for co-parent adoption is that one of the co-parent petitioners is already related, either through blood or by previous adoption, to the adoptive child.

Common Co-Parent Adoption Scenarios:

Co-parent adoption (sometimes referred to as ’second’ or ’step’ parent adoption) is commonly used in the following scenarios:

• A step parent who has assumed the responsibility of parenting an unrelated child wishes to create, together with the child’s established parent, a legally recognized parent-child relationship;
• A same-sex couple who has become pregnant (perhaps via alternative insemination or surrogacy) and wishes to create a legally recognized parent-child relationship between the child and the non-biological parent; or
• A same-sex couple who was forced to disregard their relationship in order to apply to the relevant domestic or international adoption agency as a single, unmarried, and heterosexual individual.

In each of the above scenarios, the legally established and unestablished parent join together in a petition for the adoption of the child by the unestablished parent.

Co-Parent Adoption can be an Easier, Quicker, Cheaper Adoption Process:

Because of the existing legal relationship between the adoptive child and the one of the co-petitioners, the court system is willing to waive some of the more invasive, costly, and time-consuming requirements of adoptions here in Massachusetts.

For example, your adoption attorney can bring motions before the court in order to waive some or all of the following adoption requirements under Massachusetts law:

• That the adoptive child live in the home of the adoptive parents for at least six (6) months;
• That the Department of Children and Families supervise and approve the adoption, including the requirement of a costly and invasive ‘home study’; and
• In the instance of alternative insemination by an anonymous donor, the requirement that notice (either in-hand notice or by publication in newspapers, or both) be given to the biological father or any potential biological fathers of the adoptive child; and
• In the event of a known insemination donor, a properly executed adoption surrender form can be submitted in place of the requirements of notice and termination of the donor’s rights.

The Benefits of Co-Parent Adoption for Same-Sex Families Cannot be Overstated:

For same-sex parents, co-parent adoption is an absolute necessity.  While Massachusetts’s judicial, medical, educational, and social institutions are generally respectful of same-sex couples and families, this is not the case in other states.  Some of the most important benefits of a co-parent adoption (even for married couples) include:

• The child will have two legally established parents for all purposes, regardless of a state or the federal government’s recognition or non-recognition of the parent’s relationship to one another;
• The co-parent will never need permission or authorization to make important medical, educational, or emergency decisions for the child;
• If one parent passes away, the other parent will automatically assume custody of the child, without delay or court process;
• The child will have the automatic right to inherit from both parents in the event there is no will or a will is challenged on the basis of the parent’s relationship or other grounds;
• The child will be eligible for certain federal benefits (e.g., social security) under both parents, even though the federal government will not recognize the relationship between parents; and
• Even in the event of separation or dissolution of the parent’s relationship, either parent would have a continuing legal right to custody, visitation, and child support.

I have performed co-parent adoptions throughout the Commonwealth of Massachusetts – from Boston to Northampton – and it is one of the most rewarding aspects of my legal practice.  Call us today if you would like to discuss any questions you might have about establishing a family through co-parent adoption.

5 Years After Landmark Goodridge Decision: Massachusetts has Lowest Divorce Rate in U.S.

As reported by Examiner.com, provisional data from the Centers for Disease Control’s National Vital Statistics Report show that Massachusetts has the lowest divorce rate of any state, and that the rate of divorce in Massachusetts is dropping.

…after over four years of legal same-sex marriage, the divorce rate in Massachusetts has actually dropped, from 2.3 per thousand residents in 2007 to about 2.0 per thousand in 2008, the lowest rate in the nation—and one that hasn’t been seen since the 1940’s.

The article points out that the doomsday predictions of passionate opponents of gay marriage have proved to be entirely inaccurate.  For example:

In May 2004, Focus on the Family’s James Dobson predicted “the legalization of homosexual marriage will quickly destroy the traditional family.”

In June 2004, Christianity Today’s Charles Colson warned that allowing gays to marry would lead “to an explosive increase in family collapse.”

In July 2004, during a Senate debate on the Federal Marriage Amendment, Sen. Wayne Allard (R-CO) fulminated that same-sex marriage “is a master plan out there from those who want to destroy the institution of marriage.”

Five years later, Massachusetts has proven them all wrong.

Ben & Jerry: A New Twist on an Old Favorite: “Hubby-Hubby” Ice Cream

As reported by the San Fransisco Gate, Ben & Jerry’s Ice Cream has changed the name of its “Chubby Hubby” ice cream flavor to “Hubby Hubby” in celebration of Vermont’s recognition of marriage equality.  Same-sex marriage officially became legal this week in Vermont.

Vermont, home to maple syrup and birthplace of that other magic elixir, Ben & Jerry’s Ice Cream, ignored the “who will change his name” debate, and just went ahead and did it. The artist (ice cream so good it’s art) formerly known as the flavor “Chubby Hubby” has a new married name: “Hubby Hubby,” in support of all the newly married couples.

Don’t expect to see pints in your grocer’s freezer today: like all change, sometimes it’s slow in coming (labels will take up to 18 months to reflect the shift.)

Now I just need to find a reason NOT to eat more ice cream.

The Homebuyer Tax Credit – What’s in it for Same-Sex Couples?

Congress has recently updated legislation as part of the Housing and Economic Recovery Act that gives qualifying first-time homebuyers a tax credit worth up to $8,000.  The legislation adds Section 36 to the Internal Revenue Code.   With real estate prices at rock-bottom lows, inventory still relatively high, and many sellers at the end of their financial rope, now is a great time to take advantage of Congress’s credit.

What exactly is a “tax credit”? A tax credit is essentially a dollar-for-dollar reduction in taxes owed.  So if a buyer gets the $8,000 credit and the amount they owe in taxes to the IRS is $9,000, they will receive an additional refund of $1,000. Before you dismiss the credit

Who qualifies as a “first-time homebuyer”?  Obviously, if you are a single person buying a home for the first time in your life then you qualify.  Interestingly, the definition also includes people who may have owned a home sometime during their life.  In fact, the government’s definition of a “first time” buyer is someone who has not owned their primary residence within the past three years!  That means that even people who were homeowners as recently as 2005 but sold their houses and have been renting since then may still be considered first-timers.  Qualified homebuyers must purchase the property from an unrelated party.  One other catch, buyers must not transfer ownership of the house they purchase with the tax credit for at least three years, or they will be required to pay back the credit.

“Up to” $8,000? The tax credit is equal to 10 percent of the home’s purchase price up to a maximum of $8,000, and is only available to taxpayers whose incomes do not exceed $75,000.  For heterosexual married couples the income eligibility amount is doubled to $150,000.  There is a disqualifying “cap” on persons earning $95,000 or more.  If you earn $75,000, you may be entitled to 100% of your tax credit.  If you earn $96,000, you are entitled to 0% of your tax credit.  If you make 1/2 way between $75,000 and $95,000 ($85,000), you would be entitled to 50% of your tax credit.  For heterosexual married joint buyers, your combined income cap goes to $170,000.

Because the IRS does not recognize same-sex marriages or domestic partnerships, same-sex couples do not benefit from the higher income threshold.  The legislation does allow unmarried purchasers to use any “reasonable method” to allocate the credit amount among themselves.  According to the IRS, a “reasonable method” is any method that does not allocate any portion of the credit to a taxpayer who is not eligible to claim that portion.  For example, a same-sex couple (married or not) who purchases a home as joint tenants or as tenants in common can allocate the $8,000 tax credit either according to (i) each buyer’s initial down payment, (ii) each buyer’s ownership interest, or (iii) any other reasonable method that does not give any portion of the credit to a non-qualifying “homebuyer”.  In the case of a Adam, who makes $60,000/year and Steve, who makes $100,000/year, Adam can 100% of the tax credit, and Steve may not claim any.

Congress clarified this confusing point when it issued Notice 2009-12, which provides a number of different allocation scenarios.  Note that the credit has been increased to $8,000 since the IRS publication.

Taxpayers Use IRS Form 5405 to calculate the total credit amount and then add that figure to their 1040 income tax return.  No other applications or forms have to be filled out or approved by anyone at the IRS or anywhere else.

Time is of the essence:  only those purchases “closed” on or after January 1, 2009 and before December 1, 2009 are going to be eligible.

Newly Married Same-Sex Couples: State Law Revokes Your Will

According to current data, more than 12,000 same-sex couples have tied the knot since the recognition of marriage equality here in Massachusetts over 5 years ago.  Prior to the change in law, same-sex couples were only able to protect their families by creating and maintaining comprehensive legal documents like a will, powers of attorney, health care proxy, and others.

For same-sex couples who have recently become married, the wills you and your partner created years ago to protect one another and your families are no longer valid.  In Massachusetts, a subsequent marriage automatically revokes any wills previously made, unless the will clearly states that it is  made in anticipation of an upcoming marriage.  Massachusetts General Laws Chapter 191, Sec.  9.  A revoked will is not recognized, and your estate will be distributed as though you had died intestate and without a will altogether.

It’s important to revisit your estate planning, financial, and health care instruments every several years, or upon the happening of a major life event.  For those couples who have just tied the knot, make sure both you and your partner’s wills are up to date.