The “New” Massachusetts Homestead Law

For a relatively low filing fee, Massachusetts homeowners have the ability to protect their principle residence from the claims of certain creditors up to $500,000.00.  Until recently, this powerful, and relatively inexpensive protection was only available to homeowners who prepared and filed a “Homestead Declaration” with the Registry of Deeds.  Recent revisions to the existing Homestead Act, which were signed into law by Governor Patrick, will provide every Massachusetts homeowner with up to $125,000.00 in creditor protection automatically, beginning in March 2011.

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.

Among other changes, the law clarifies that the home equity protections remain valid if a family member transfers a house to another relative or refinances a mortgage. It provides additional protection for homeowners who receive insurance proceeds from fire or other damages. And it now provides coverage to people whose homes are in a trust for estate planning or other reasons. The law does not protect residents from foreclosure.

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Co-Parent Adoption: A Guide for Same-Sex Couples in Massachusetts

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.

Who Can Obtain a Co-Parent Adoption?

Co-parent adoptions are frequently used to establish a parent-child relationship in the partner or spouse of a person who already has a child or children. For example, a woman with two children from a previous relationship may bring a co-parent adoption together with her new spouse in order to legally establish her spouse’s parental rights. In another example, a same-sex couple who conceived via alternative insemination (sperm donor) would bring a co-parent adoption and petition the court to establish a parent-child relationship in the non-birth parent. In Massachusetts, adoption by same-sex couples is permitted and widely accepted (even celebrated) by the courts. Adoption is also permitted regardless of whether the petitioners are married. Essentially, the petitioners in a co-parent adoption are demonstrating to the court that the unrelated party is a true parent in every sense, and that the parent-child relationship should be established legally and permanently.

What Steps Are Involved In Petitioning The Court For Co-Parent Adoption?

A co-parent adoption is commenced by filing a petition and supporting paperwork in the probate & family court. There are no filing fees, and filing can be done by mail or by hand-delivery of the paperwork. If the petitioners are entitled to waive the Commonwealth’s adoption requirements, motions should be filed with the Court. Once submitted to the Court, the adoption clerk will carefully scrutinize the petition. The Court may request a hearing before a judge prior to allowing any motions. The Court may also request additional information or affidavits, and may independently request CORI reports from the criminal offender registry. Once all paperwork is approved, and all motions have been allowed or denied, the Court will schedule a finalization hearing. Ideally, this is the first and only time the petitioners will have to attend court, and the hearing is a happy and celebratory event. Friends and family are encouraged to attend, and the proceeding is closed to the public.

How Much Does Co-Parent Adoption Cost In Massachusetts?

Court Fees: Unlike most legal proceedings, there are no court filing fees for adoption. Certified Records: Certified copies of birth, marriage, and criminal background records each cost between $20.00 – $30.00. Your attorney can obtain these records for you, or you can request them directly from the appropriate state agency. Legal Fees: Legal representation, including preparation of all paperwork, filing and presentation of all motions, and attendance at your final adoption hearing, typically costs between $1,500.00 and $3,000.00, and most attorneys will offer a simple flat rate for all services. Other Expenses: If the petitioners are unable to waive the more invasive and cumbersome requirements of state involvement, adoption agency participation, notice-by-publication, and a home study, the couple can expect significant delays and several thousands of dollars in additional expenses. Because money is tight for new parents, our firm offers flexible payment plans!

Both Parents Are Listed On The Birth Certificate, Do We Still Need To Adopt?

The answer for same-sex couples is YES. In Massachusetts, a child born to two married persons is presumed to be the legal child of both parents (including parents who use alternative insemination and a sperm donor to become pregnant). Most hospitals in Massachusetts will list married same-sex spouses as “co-parents” on a child’s birth certificate. Same-sex couples should adopt their child, even if both of parents’ names appear on the child’s birth certificate, because: 1. Marriage entitles you to a presumption of parenthood only, and there is nothing stopping a known donor or even an unknown donor from attempting to assert parentage over his child – adoption will permanently terminate his rights; 2. Other states may refuse to honor same-sex parenthood, especially those states where same-sex marriage or adoption is prohibited or unrecognized; Adoption creates a permanent and irrevocable court decree, and is recognized by EVERY state in the nation.

Do I Need An Attorney To File An Adoption Petition?

While not required, hiring an experienced adoption attorney can make the process of gathering and organizing adoption paperwork, preparing and filing important motions, and coordinating with court staff more efficient, more enjoyable, and less stressful for the adopting family. In addition, an attorney can assist you in the event that problems arise during the course of your adoption, such as an uncooperative donor, difficulty obtaining certain important records and paperwork, an unfavorable criminal background report, or other situations that require individual attention and advocacy. Our firm assists couples in family creation – by adoption, donor insemination, and anonymous egg donation – throughout Massachusetts. We work with families one-on-one to ensure that their experience with the courts and legal system is as enjoyable, friendly, and relaxing as possible.

We Used A Sperm Donor. Do We Need To Terminate His Rights?

The answer is yes. In order to finalize the adoption, the courts will require that notice of the proceedings be sent to the child’s biological ‘father’ or any potential ‘fathers’. The purpose of notifying the biological donor is to allow them an opportunity to object to the adoption and to assert their rights as parent. If a known donor is used, he should be asked to carefully prepare and submit an “Adoption Surrender” form, acknowledging his understanding of the proceedings and his intention to permanently give up any and all parental rights in favor of the new adoptive parent. If an anonymous donor is used, a motion should be prepared and filed with the court requesting permission to waive the notice requirement, since attempting to notify an unknown donor would be fruitless, cause undue expense, and delay the adoption. Assuming all necessary documentation is in order, this motion is typically allowed.

What Paperwork Is Required In Order To Complete A Co-Parent Adoption?

Every co-parent adoption petition will require some or all of the following documentation. An experienced adoption attorney can determine what is required for your unique family situation, and ensure that all paperwork is prepared properly to ensure a quick and seamless court proceeding. 1. Joint Petition for Adoption; 2. Affidavits of Petitioners; 3. Affidavits Disclosing Care and Custody Proceedings; 4. Criminal background checks (CORI); 5. Certification of notice to the Federal & Central Registers of Missing Children; 6. Marriage Certificate, for married petitioners; 7. Birth Certificate; 8. Motion to Waive DCF Involvement and Home Study Requirement with supporting documents; 9. Motion to Waive 6 Month Residency Requirement and supporting documents; 10. Motion to Waive Notice Requirements and supporting documents; 11. Motion for the Return of Original Birth Records, in the case of international birth; and 12. Adoption Surrender of Biological Parent.

Is Co-Parent Adoption Any Easier Since One Of Us Is Already Related To The Child?

The answer is yes. Co-parent adoption can be a much easier, quicker, and cheaper process than a typical adoption. With the help of your attorney, if you have one, motions can be filed with the court that allow co-parent adoption petitioners to waive some of the most expensive and invasive adoption requirements, including: 1. The requirement that adoption petitioners provide notice to the biological parents or potential biological parents of the adoptive child; 2. The requirement that the adoptive child reside in the adoptive home for a (waiting) period of six months prior to adoption finalization; and 3. The requirement that the Department of Children and Families or other licensed agency conduct a home study and provide the court with a written report in favor of adoption. Avoiding these requirements can save co-parent adoption petitioners thousands and thousands of dollars, and avoid unnecessary delays and invasion of their privacy.

How Long Does The Co-Parent Adoption Process Take?

Most of the co-parent adoption we handle are wrapped up in a matter of six months or less. The preferred course of action is to contact and meet with an adoption attorney a month or two prior to birth of the child. It is much easier to establish a relationship with your attorney, get to his or her office, and focus on paperwork, BEFORE the child arrives! Your attorney can have almost all of the paperwork completed prior to birth, with the hope of filing for adoption as soon after birth as possible. If all motions are allowed by the Court, it should be possible to have your adoption finalized by the Court as soon as three months after birth. Once your adoption is finalized, an adoption decree will be issued by the Court, and any amended birth certificates will be prepared without delay. There is no waiting period, and adoptions are effective immediately upon finalization by the judge.

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Nebraska Judge Denies Divorce to Same-Sex Couple

As reported by the Nebraska City News-Press on January 26, 2011:

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.

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Obama Administration Expands FMLA to Benefit Same-Sex Parents, Others

US Secretary of Labor Hilda Solis recently posted an article in the Huffington Post about recent changes to the Family Medical Leave Act (FMLA).  The Department of Labor’s  Administrator’s Interpretation No. 2010-3 clarifies the definition of who is a “son or daughter” for the purposes of caretaker benefits under the FMLA.

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.

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‘Til Death Do Us Part: Residency Requirements and the Gay Divorce Dilemma

Background.  Since Massachusetts legally recognized the right of same-sex couples to marry in 2004, thousands and thousands of couples from around Massachusetts and around the Country have tied the knot here in the Commonwealth.  As we know, the status of marriage provides countless benefits to gay and straight couples alike, including inheritance, property ownership, presumptions of parenthood, etc.  But one of the most important (and often overlooked) benefits of marriage is actually divorce!  Divorce provides both parties in a relationship the benefits of an orderly division of property, assets, and debts, and promotes the fair and equitable treatment of both spouses.

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.

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Iceland Parliament Passes Same-Sex Marriage Law; Prime Minister Weds

As reported by the Associated Press on Monday, June 28, 2010, the Iceland parliament recently passed a law granting full same-sex marriage equality to same-sex couples.  The law passed without a single dissenting vote on June 11, 2010.

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.

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NY High Court Clarifies Rights of Non-Biological Parents in Same-Sex Relationships

ALBANY-  New York State’s highest court ruled on Tuesday that nonbiological parents in legally recognized same-sex unions have the same parental rights and obligations as nonbiological parents in legally recognized opposite-sex unions.  The question tackled by the court in Debra H. v. Janice R. was whether a nonbiological mother who entered into a Vermont civil union with her pregnant partner prior to the birth of their child had standing to assert parental rights in New York, including visitation.  The Court found that she did.

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.

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