The new law, which goes into effect on March 16, 2011, effectively amends and clarifies the Homestead Act in some of the following ways:

• All Massachusetts homeowners will receive an automatic homestead exemption of $125,000 for protection against certain creditor claims on their principal residence, without the need to prepare or record a declaration.
• All Massachusetts homeowners continue to be eligible for a $500,000.00 “declared homestead exemption” by filing a declaration of homestead at the registry of deeds.
• For married couples, each spouse will not have to sign the declaration of homestead – which is a change from prior practice.  Because this is not a federal law or protection, same-sex married couples have the same rights and protections afforded all “married spouses” under the Homestead Act.
• Homesteads protection will now be available for 2-4 family homes, and for homes in trust.
• The existing “elderly and disabled” homestead protections will remain available at $500,000.00.
• If you have a homestead as a single person, and later become married, the homestead automatically protects your new spouse! Homesteads now pass on to the surviving spouse and children who live in the home.  Again, married same-sex couples are considered “spouses” for the purposes of the Homestead Act.
• You do not have to re-file a homestead after a refinance. This has been an area of confusion and disagreement, with lenders requiring homeowners to either subordinate or release homesteads. Under the new law, homesteads are automatically subordinate to mortgages, and lenders are specifically prohibited from having borrowers waive or release a homestead.
• Closing attorneys in mortgage transactions are required to provide borrowers with a notice of availability of a homestead.

A recent Boston Globe article, New Law Clarifies Mass. Homestead Protections, describes the impact of the new law:

The legislation, signed Thursday, clarifies ambiguities in a law first enacted in 1851. The statute, amended a number of times in ensuing years, provided $500,000 in protection from creditors — but only for homeowners who file a so-called homestead declaration with a county registry of deeds, a process that can cost between $35 and $100. Under the new law, homeowners do not have to make such a filing unless they hold more than $125,000 in equity in their homes. They can still get $500,000 in protection if they file a homestead declaration.

The legislation culminates a years-long effort by attorney groups to improve the antiquated homestead law, enacted when women could not own property. It also addresses complaints that the law was unfair to homeowners who didn’t have the training or legal counsel to help with the declaration filing process.

What Is Co-Parent Adoption?

Generally speaking, adoption refers to the process of establishing a legal and permanent parent-child relationship where none existed. A typical example is the domestic or international adoption of a child by an unrelated individual or couple. Adoption terminates the parental rights of an adoptive child’s parents, and creates new and permanent parental rights in the adoptive individual or couple. A ‘co-parent adoption’ (sometimes called a ‘second-parent’ or ‘step-parent adoption’) is the joint adoption of a child by one person who is already the biological or legal parent of the child together with another person who is not. Co-parent adoption creates a permanent and legal relationship between a child and both adoptive parents, where previously the child had only been related to one of adoptive parents. A classic example is the child adopted by a step-parent who wishes to legally establish his or her parental rights.

District Judge Randall Rehmeier Tuesday denied a divorce to a same-sex Nebraska City couple that was married in 2003 in Vermont.  The judge said the Nebraska Constitution provides that “only marriage between a man and a woman shall be valid or recognized in Nebraska.”

He said since the state does not recognize the marriage, he does not have jurisdiction to dissolve it. He said courts in Pennsylvania, Connecticut, Texas and Rhode Island have come to the same conclusion.  The plaintiff, a 37-year-old Nebraska City woman, petitioned the court for dissolution of the marriage against the defendant, a 50-year-old Nebraska City woman.

Interestingly, although Judge Rehmeier refused to recognize the couple’s status as married for the purposes of granting a divorce, he did rule on issues of parenting, custody, and child support which had been presented and agreed to by both parties.  The Judge noted that it was expressly in the best interests of the child to exercise jurisdiction over parenting and custody only.

He granted custody of a four-year-old girl to the plaintiff, the girl’s biological mother.  The defendant, who holds a job in Hamburg, Iowa, is ordered to pay child support of $200 a month and all day-care and pre-school expenses. The women will share in health care expenses.  The parenting plan ordered by the court includes weekend and holiday visitation.

“The defendant has assisted the plaintiff in providing day-to-day care and nurturing of the child,” the judge said in his ruling.  “The defendant has established a close bond and relationship with (the child),” he said.  … He said the plaintiff agrees that the defendant has established a parenting relationship.

Under the changes, any employee who has assumed the responsibility of parenting and caring for a child will be permitted to stand in loco parentis (in the place of a parent) for the purposes of obtaining FMLA leave.  As Secretary of Labor Solis explains:

When the Family and Medical Leave Act was first passed in 1993, it was a huge step forward in establishing the flexibility and security that the American workforce needed to care for our future generations. It allowed employees to take unpaid leave to care for their kids without the fear of losing their jobs.

But while many are quick to point out that the workplace, workers, and indeed the concept of families have changed, the flexibility to apply FMLA to shifting conditions did not.

Well, the Administration took a major step in recognizing the need for such flexibility on Tuesday when the U.S. Department of Labor issued Administrator’s Interpretation No. 1010-3, which clarifies the definition of “son and daughter” under the FMLA. In doing, so we have expanded FMLA protections to cover loving caregivers that have traditionally been left out.

The Department of Labor’s changes come largely in response to requests for guidance regarding whether employees who do not have a legal or biological relationship with a child may take FMLA leave for the birth, bonding, or care of the child.

By way of example, FMLA leave may be obtained by the same-sex partner of a mother who has given birth to a child via artificial insemination.  In another example, a non-biological parent may obtain FMLA leave in order to care for his or her partner’s child or children, even though no biological or legal relationship exists between them.

In essence, benefits are available to all persons who have assumed the responsibility of parenting a child, regardless of the absence of a biological or legal parent-child relationship.  For more specifics on the policy read the Department of Labor’s recent Administrator’s Interpretation No. 2010-3.

While many same-sex couples have remained here in Massachusetts, some married gay couples have either returned to their home in another state, or moved out-of-state to pursue employment or other opportunities.  In the process of packing up their lives and families in order to move out of state, these couples have left one very important thing behind: their marriage!

I am contacted increasingly often by couples from states like Florida who were married in Massachusetts and who now want to obtain a same-sex divorce.  In many cases, both spouses are in complete agreement and ready to cooperate in order to obtain a divorce.  Their question to me:  Can we obtain a divorce in Massachusetts? The answer:  No.  Follow-up question:  Well, then can we get divorced in Florida? The answer:  No.

Recent Massachusetts Case Law Concerning the “Residency Requirement”.  This dilemma recently played itself out in the case of Francesca Cerutti-O’Brien v. Donna-Marie Cerutti-O’Brien.  Francesca and Donna-Marie were married in Truro, Massachusetts,  in November, 2006.  At the time of their marriage, Francesca was a shop-owner and resident of Massachusetts, and was making routine trips to be with her partner, Donna-Marie, in Florida.  Less than one month after the marriage, the couple bought a home together in Florida, with plans to open up a shop in Florida and spend summers in Massachusetts together.  Despite marital counseling, the marriage quickly soured and, according to court papers, suffered an irretrievable breakdown in Florida on June 19, 2007.  Francesca filed for divorce here in Massachusetts on June 27, 2007.

On the eve of their divorce trial, Donna-Marie moved to dismiss Francesca’s divorce complaint on the basis that the Massachusetts Courts could not grant a divorce to the couple because neither of them was domiciled here in Massachusetts.  The Court agreed and dismissed the divorce.  Francesca appealed.

On review, the Appeals Court affirmed the Probate and Family Court’s dismissal of Francesca’s complaint for divorce.  Under Massachusetts law, the Probate and Family Court can only hear divorce cases in which the grounds for divorce occurred in another state if:  (1) the spouses once lived in Mass, AND one of the spouses resides in Mass at the time the complaint is filed, OR (2) at least one of the spouses has resided in Massachusetts for at least one year prior to filing.  After all, if the grounds for divorce occurred in Florida, and the parties reside in Florida, then Florida is the most appropriate venue for the divorce, right?  Not necessarily!

The Dilemma for Married Same-Sex Couples.  The dilemma for many married same-sex couples is that their state of domicile will not grant them a divorce because it will not recognize their marriage.  After all, one of the prerequisites for obtaining a divorce is proving that you are married in the first place.  In a majority of states across the country, same-sex couples will not be able to establish the existence of a valid marriage.  And as many couples have discovered, the state that granted them a marriage now lacks the power  to grant them a divorce on account of the residency requirement.

Frustrated yet?  Consider this:  every time you re-enter Massachusetts, or any of the growing number of states or nations that recognize a Massachusetts gay marriage, you may be considered married in that state for purposes of inheritance, property ownership, medical decision-making, taxes, employment, military eligibility, etc.

Until each and every state recognizes gay marriage, or will at least agrees to grant a divorce to married same-sex couples within its borders, this dilemma represents another undue and heavy burden on LGBT couples and families.  I propose that the Massachusetts legislature modify Massachusetts General Laws Chapter 208 Section 4 and 5 to allow same-sex couples who were married here in Massachusetts, and find themselves barred from obtaining a divorce in their current state of residency, to obtain a divorce here in Massachusetts.

Barring a change in the state’s current residency requirement, I strongly recommend that same-sex couples who are thinking of becoming married here in Massachusetts sit down with an attorney who focuses in LGBT legal issues, and discuss the ramifications of obtaining a marriage here in Massachusetts with plans to reside outside the Commonwealth.

Iceland’s Prime Minister, Johanna Sigurdardottir, took advantage of the new law and married her partner, writer Jonina Leosdottir the day after the law passed.  According to the Associated Press, the couple had entered into a registered partnership back in 2002, and had their status converted into a marriage under the new law without a ceremony.

As reported by the Telegraph, Iceland’s Prime Minister is the world’s first openly gay head of state.

The case involves New York residents Debra H. and Janice R., who met in 2002, and who decided together to have and raise a child via artificial insemination.  In November 2003, one month before Debra gave birth, she and Janice traveled to Vermont to obtain and enter into a civil union.  In 2006, the couple split up and Janice left the family home.  The couple’s agreed-upon visitation schedule eventually broke down, with Debra eventually cutting off all visitation and communication with the child by Janice.  In May 2008, Janice brought the present lawsuit seeking joint legal custody and physical custody of the child.

Janice testified at trial that because of her (incorrect) belief that their “civil union was of no legal consequence in New York and did not confer … any additional rights and responsibilities, combined with [her] desire to put an end to [Debra's] nagging, [she] acquiesced to the civil union”.  In the end – and perhaps ironically – the deciding factor in Janice’s case was her legal civil union to Debra at the time Debra gave birth to their child.  Also ironic is the fact that Janice continually refused to co-adopt the child, despite Debra’s urging (“nagging”?).  Had Janice co-adopted the child, she would have become the child’s legal parent in all respects.

Although the legal reasoning is complex, the simple result of this case is to give effect to the well-established legal principal that a child born to two married persons is presumed to be the legal child of both spouses.  The Court observed that such a legal presumption of parentage was created in Janice by Vermont’s civil union statute, which specifically confers on same-sex couples “all the same benefits, protections and responsibilities under law . . . as are granted to spouses in a marriage” (Vt Stat Ann tit 15, § 1204 [a]); and the same rights “with respect to a child of whom either becomes the natural parent during the term of the civil union,” as “those of a married couple” (Vt Stat Ann tit 15, § 1204 [f]).

Basing its decision on Vermont’s civil union statute and recent Vermont case law (Miller v. Jenkins), the New York Court held that Janice was entitled to a legal presumption of parenthood under Vermont law.  Under the legal doctrine of comity (enforcement of the judicial decision, statutory interpretation, or policy of a sister state so long as it does not violate the public policy of the enforcing state), the Court on Tuesday held that Janice was entitled to a presumption of legal parenthood under New York law.  The Court’s decision directs the parties back to the lower court, where Janice will be permitted to seek visitation and custody of the child.

The case is not as groundbreaking as some have suggested.  The New York Times, for example, incorrectly states the Court’s holding as granting nonbiological parents in same-sex relationships the same rights as biological parents. [New York Times].  Instead, the Court is merely establishing parity between the rights of nonbiological parents in legally recognized same-sex unions and the rights of nonbiological parents in opposite-sex unions.  Although the Court’s ruling specifically deals with Vermont’s civil union statute, presumably the same recognition of parentage would result from a Massachusetts, Connecticut, Vermont, D.C., California, New Hampshire, or other foreign same-sex marriage.

Also of note, the Court explicitly declined to decide whether principles of comity dictate that New York should give legal effect to the parties’ out-of-state civil union.  Instead, the Court’s somewhat narrow opinion holds, “only that New York will recognize parentage created by a civil union in Vermont.”

Some final words of caution:

First, speak to a lawyer before entering into a legally sanctioned same-sex union or marriage to discuss the effect on (i) property ownership and inheritance, (ii) child rearing and parenting, (iii) military status, and (iv) the ability to effectively terminate the relationship if needed.

Second, it is extremely important that same-sex couples who intend to become pregnant or raise a child together take all legal precautions to protect each other and their relationship with their children.  In Massachusetts, marriage to a biological parent at the time of birth will create a presumption of parenthood in the nonbiological parent as well.  However, this presumption may be subject to attack and may require a court to enforce.   A co-parent adoption is the best way to establish and protect both parents, and should be recognized by all other states.

Same-sex couples should also consider premarital agreements, parenting agreements, comprehensive estate planning, donor agreements and surrogacy agreements, and other legal ways to protect their family in the face of often conflicting or hostile state and federal laws.

According to the Washington Post Blog, approximately 150 couples from District of Columbia, Maryland, and Virginia applied for marriage licenses last Wednesday, the first day that applications were accepted from same-sex couples under the new law.

As reported by the Washington Post Blog:

Mayor Adrian M. Fenty (D), who signed the legalization measure in December, invoked his parents’ interracial marriage as he congratulated the newlyweds at a news conference. The weddings, he said, “were a great step forward for equality and for our city that has always been a standard-bearer for treating people equally and justly.”

Among the more than 100 guests, friends and relatives of the three couples at the HRC were council members David A. Catania (I-At Large) and Jim Graham (D-Ward 1), who are gay.

Catania, the leading sponsor of the bill, which passed the D.C. Council 11 to 2, called the moment “the most profoundly rewarding day. . . . I could not be prouder of this city.”

The couples were also joined by Frank Kameny, one of the founders of the gay rights movement, who was fired from his federal government job in 1957 for being gay. He hailed the event as a “major victory” but cautioned the crowd not to lose sight of the work ahead in other states and with the federal government, which is prevented by the Defense of Marriage Act from recognizing same-sex marriages.

Republicans, socially conservative Democrats and several African American lawmakers from Prince George’s County to Baltimore blasted the decision. One Republican lawmaker vowed to bring articles of impeachment against Gansler for trying to usurp Maryland law, which defines marriage within the state as between a man and a woman. The Roman Catholic archbishops of Washington and Baltimore and the bishop of Wilmington said in a statement that they take “strong exception” to the decision.

the starting principle in state law is that a marriage that is valid in the place of celebration remains valid in Maryland. And even though the state narrowly defines marriages performed within its borders as between a man and a woman, Gansler says, such restrictions don’t amount to a strong public policy argument that would override recognizing unions from elsewhere.

In recognizing same-sex marriages validly performed in other jurisdictions, Maryland joins the states of California and New York (and perhaps Washington D.C. as of next week) in that, although they refuse to perform same-sex marriages, they will recognize valid same-sex marriages performed in other states or countries.

Thus far, only the states of Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa recognize full marriage equality.  Of note, the federal government does not recognize same-sex relationships of any kind, regardless of any state law.

Angelique Naylor, 39, and Sabina Daly, 41, married in 2004 in Massachusetts, where gay marriage is legal. They returned to their home in Austin and together adopted a son, who is now 4. They have been separated for more than a year.

Last week, at the close of a two-day hearing before state District Judge Scott Jenkins on how they should divide their property and share custody of their son, the two reached an agreement that in part called for them to divorce.  According to Naylor’s lawyer, Jennifer Cochran, Jenkins granted the divorce orally and ordered the parties to put their agreement in writing and return to court next month for his signature.

“This is the first time in over a year that our family has been at peace,” said Naylor, who still lives in Austin. Daly has moved to San Antonio with their son.  “We never asked them to grant us a same-sex marriage. We only asked them to legally recognize that we needed a divorce,” Naylor said.

Abbott spokesman Jerry Strickland said in a statement, “The State maintains that the Court has no legal authority to grant this divorce, and as a result, the State must intervene in this case to defend the Texas Constitution.”

Abbott’s petition in intervention was filed Thursday after the agreement was reached in court. In it, Abbott notes that after Naylor filed for divorce in December, Daly argued that divorce was the wrong legal remedy for the couple and that the court should instead declare the marriage void.

“Petitioner (Naylor) is asking the court to recognize and enforce a marriage between two persons of the same sex which is contrary to the law and public policy of the state,” wrote Luther, Daly’s lawyer.

This is not the first time that Abbott’s office has sought to intervene in a Texas same-sex divorce case.  He did so before state District Judge Tena Callahan in Dallas County ruled in October that two men could divorce in Texas.Callahan ruled in that case that the prohibition of same-sex marriage violates the right to equal protection under the U.S. Constitution.  Abbott has appealed the ruling. It is pending in the state’s 5th Court of Appeals.

Texas is one of numerous states that have passed constitutional amendments banning gay marriage. The Texas amendment, passed by the Legislature in 2005 and approved by 76 percent of voters, defines marriage as between one man and one woman.

It is essential that couples meet with an attorney to discuss the ramifications of marriage prior to tying the knot in a state that recognizes marriage equality.  A marriage here in Massachusetts can affect the parties rights with respect to child custody, property,  inheritance, government benefits, military services, etc.

Secondly, after obtaining a marriage license here in Massachusetts, many couples find themselves completely unable to obtain a divorce after returning or moving to a state that refuses to recognize their marriage.  Because Massachusetts (like many states ) imposes a residency requirement on divorce petitioners, one spouse would technically be forced to establish residency here in Massachusetts in order for the couple to obtain a divorce.  As a result, couples all over the country find themselves in matrimonial purgatory.