Marriage after civil unions

On July 26, 2012, the Massachusetts Supreme Judicial Court issued an opinion in the matter of Elia-Warnken v. Elia. This case involved a same-sex couple who was in the midst of divorce litigation. The issue brought before the SJC was "Whether or not a Vermont civil union must be dissolved before either party to that civil union can enter into a valid marriage in Massachusetts to a third party." (link to opinion here) 

Elia-Warnken had entered into a Vermont civil union that he never dissolved. Thereafter, he married Elia, who argued that the marriage was void due to polygamy. Here's the tough part:  Vermont eventually went on to recognize same-sex marriage, but specifically stated that civil unions then existing would not automatically convert to marriage. Since Massachusetts expressly refused to create civil unions in lieu of marriage, wouldn't it make sense that a Vermont civil union be treated differently from a Massachusetts marriage?

The Court looked at the language behind Vermont's civil unions to determine that they, at the time created, were meant to provide the same protections and advantages to same-sex couples as marriage, defined as "the voluntary union of two persons as spouses, to the exclusion of all others." Under the principles of comity, a state must give "respect and deference to the legislative enactments and public policy pronouncements of other jurisdictions," including out-of-state marriages. As such, Massachusetts views Vermont civil unions as the equivalent of an out-of-state  marriage.

The Justices further pointed out that allowing both the Massachusetts marriage and the Vermont civil union to remain intact would result in Elia-Warnken having similar obligations to two different people (his former partner and Elia), causing great confusion. Both parties could request child or spousal support from him, plus other benefits afforded under the law.

Bottom line:  Although this case applies to Vermont civil unions, it could easily apply to civil unions/domestic partnerships of other jurisdictions and countries, given the language used.  As such, couples looking to wed in Massachusetts should ensure that their out-of-state civil unions have been dissolved prior to getting married.

(c)2014 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Alternative Reproduction and Parental Rights

On March 6, 2012, the Supreme Judicial Court held that a father who consents to in vitro fertilization is the legal father of the children born of this artificial insemination, even if the parties agreed that he would take no responsibility for the needs of said children (Chukwudera B. Okoli vs. Blessing N. Okoli).

This holding comes on the tail of recent case law, Della Corte v. Ramirez, which held that children born of a same-sex couple become "children of the marriage" and the parties (whether biological parents or not) are legally responsible for them. In other words, both cases hold that if children are born in a marriage through alternative reproduction methods, but the parties consent to same, then both parties become legally responsible for the children. Even if the non-biological parent never adopts the children, or if the parties reach an agreement amongst themselves that one party will bear no financial or legal responsibility for the children, both parents are still considered the children's legal parents. The intent of the parties to become parents is irrelevant, just like it would be if two people engaged in sexual intercourse that resulted in a pregnancy.

IN SUM:
If you're married, don't consent to conception unless you are ready to be held legally responsible for the resulting offspring.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

In same-sex marriages, what rights do non-biological parents have?

On February 2, 2012, the Massachusetts Appeals Court upheld a lower court's judgment that a non-biological mother of a child born during a marriage who never co-adopted the child is nevertheless considered the child's other legal parent. In other words, the court found that it was irrelevant whether an individual failed to adopt their spouse's child or even partake in the conception (by assisting with the insemination, selecting the donor, etc.).  If the child was born after the parties were married, the child became a "child born of the marriage" and entitled to the same rights as a child born of a married woman. As such, the child is entitled to support from both parents, as well as appropriate custody and parenting time with the non-biological parent.

 Prior to this landmark decision, the law was very muddy in regards to the rights of a child born of a parent in a same-sex relationship. It was unclear whether that child, if not adopted by the non-biological parent, was still considered that parent's legal child. This problem forced the courts to apply the "de facto parent" test to determine if the non-biological parent had shared in more than half of the care-giving responsibilities for the child, therefore creating a parent-child relationship that would enable that parent to custody and visitation, and also establish a child support obligation.

While this new case (Della Corte v. Ramirez) confers necessary rights on non-biological parents and the children born of their marriage, it is still imperative that same-sex couples complete co-parent/second parent adoptions. Doing so ensures that non-biological parents retain their important parental rights when traveling outside of the Commonwealth and into states that do not recognize same-sex marriage, or that have yet to establish case law similar to Della Corte v. Ramirez. For more information about the rights of same-sex parents, please contact Attorney Leila J. Wons.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."