The RCA Prenup and its Disingenuous Middle Box

The Rabbinical Council of America (RCA) calls its prenuptial agreement (“The Prenup”) the “single most effective solution to the agunah crisis.”  Since 2006, the RCA has prohibited member rabbis from officiating at marriages for couples who do not sign “The Prenup.”

Jewish divorce law is asymmetrical and it offers men a very powerful weapon. Even if a couple has a civil divorce, they are considered religiously married until the husband, freely and of his own will, gives his wife a get, the Jewish writ of divorce. Sometimes men withhold the get out of spite.  Others use it as a bargaining chip for to negotiate marital property distribution, alimony, child custody, child support, or simply to extort thousands or millions of dollars from their wife or her family. A woman may have to choose between giving into her husband’s demands and never being allowed to be in another relationship or to have future children.[1]

“The Prenup” purports to neutralize that weapon. In a contract designed to be civilly enforceable, grooms promise to pay support payments of $150 per day for each day between the separation and the religious divorce. In theory, the husband is incentivizing himself, rather than being coerced, to give a get promptly.  If he fails to do so, then with the permission of the RCA’s rabbinical court, the Beth Din of America (BDA), the wife may enforce that financial obligation in secular court.

However, the original goal of “The Prenup” had little to do with protecting women. In 1997, Rav Zalman Nehemia Goldberg, one of the Prenup’s two co-authors, said “the main purpose of the RCA Prenup was to insure that litigating couples bring their dispute before religious courts, rather than secular courts.”[2] A tenet of Jewish law is that disputes among Jews, including those that arise in the context of a divorce, belong in Jewish courts. “The Prenup” was meant to address the reality that many divorcing Jewish couples choose secular American courts instead.

The most prominent clauses in the standard “Prenup” – the middle – give the Beth Din power to rule on the division of property and alimony, or on “all disputes.” This broad phrasing encompasses child custody and child support. These clauses are technically voluntary (opt-in) but fairly subtly so. A couple who initials these clauses and executes the full “Prenup” sign away their rights and protections under secular law and subject themselves, if not their children[3], to the “binding arbitration” of the Beth Din of America. They may indicate whether the Beth Din should decide financial matters in accordance with Jewish law (halacha) or in accordance with civil law, but no explanation is provided regarding the difference. No choice at all is offered for rulings on child support and child custody leaving it unclear whether the Beth Din will use the secular “best interests of the child” standard or rely on its interpretation of Jewish law, which may differ substantially and to the detriment of women.

The RCA recognizes that women fare worse in Jewish courts than in secular ones. Rabbi Mordechai Willig, Goldman’s co-author of “The Prenup” and current Deputy Head of the Beth Din of America, acknowledges:

“…some women or their attorneys will object to the inclusions of monetary disputes (e.g. property settlements, alimony, child support) in the arbitration agreement, for the current secular law of equitable distribution and maintenance or community property will generally result in a larger financial settlement for women than does enforcing the provision of the standard ketubah.”[4]

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Second Parent Adoption and the meaning of ‘intimate partner’ expands in New York

New York County Surrogate’s Court recently ruled that two friends who were raising a child together, a child that one of the friends had legally adopted from abroad, could both be recognized as parents via a second parent adoption because an ‘intimate partnership,’ for the purpose of adoption at least, does not require a sexual relationship or cohabitation.

These two friends raised the child together since birth, sharing custody and care duties across their two households (Brooklyn and Manhattan), sharing grandparent time with both of their sets of parents, and creating what sounds like a loving and stable family.

The court made a sweet commentary on the problems with using the ‘traditional/nuclear’ family as a benchmark instead of supporting legal parental relationships in the best interests of individual children.

“Historically, there has been an implicit, and often explicit, preference for giving adoptive children homes in nuclear families consisting of parents who are husband and wife… This idealized family structure is often referred to as “traditional.” The label “traditional” family for the nuclear, heteronormative family, implying it is the typical family, is a misnomer in any event. The “nuclear family” has not represented the norm for large sections of the population in a long time… As society acknowledges an ever expanding cadre of family compositions, adoption law, as the Court of Appeals in Jacob directed, should not lag behind. To do otherwise would have the effect of withholding the benefits and protections of a legal parent from children without regard for what would be in their best interests.”

It is hard for me to choose a favorite part of this case. I love the expansion of legally supported families, I love the recognition that there are relationships beyond the biological and sexual that are worthy of legal recognition, and I love empowered reading of statute and case law to entitle this individual child to the protections of a legally recognized family.

Matter of G., Surrogate’s Court, New York County, Decided: December 27, 2013

On Lilith: To Whom Does a Child Belong

The Indian Child Welfare Act case currently being decided by the Supreme Court evokes questions about the relationship between a child and a community (broader than the newborn’s biological parents) who feels a connection to that child, as well as showcases the great harm that a shoddy adoption agency can inflict. On the Lilith Blog: To Whom Does a Child Belong

A Sourcesheet on Assisted Reproductive Technology and Jewish and Secular Law

ART & Jewish and secular law [Word]

This is a sourcesheet I prepared for a workshop a couple of years ago. Most of the sources are secondary, scholarly articles and editorials. It is organized around the question of a child’s right to know and be raised by his or her biological parents and it is meant to be a resource for learning and discussion.

Table of Contents

Assertion: A child has the right to know and be raised by its biological parents

  • Rabbi Einat Ramon, “In Israel, A Call to End Anonymous Sperm Donation”
  • British Columbia Supreme Court: sperm donor anonymity violates Charter of Rights and Freedoms
  • Prof. Margaret Somerville: Children’s human rights to natural biological origins and family structure
  • United Nations: Convention on the Rights of the Child

Who are a child’s parents?

  • Secular Law
  • When legal paternity is established
  • When the presumption of a husband’s paternity is factually wrong
  • When a legally recognized ‘parental project’ pre-empts the legal parenthood of the biological parents
  • In case of adoption
  • Jewish law
  • When the biological father is living at the time of conception:
  • When the biological father died before conception/implantation and when the genetic father is not Jewish:
  • When the child is the product of a levirate marriage
  • When the gestational mother and genetic mother are different
  • When the genetic father and ‘social father’ are different
  • In case of adoption

The right to know

  • Secular Law
  • Reasons for recognition
  • Concern of disparate impact on different forms of families
  • Concern of availability of donor gametes
  • Who recognizes it and how does it work?
  • Jewish Law
  • Preventing prohibited sexual relationships
  • Concern of birthing a Jewish child into non/insufficiently Jewish family

On Lilith: Sisters In Law

I was interested and inspired reading the article, Muslim women lawyers aim to reconcile traditional beliefs with secular society,about Muslim women’s feminist work in secular and Islamic law, “to uncover a faith stripped of the patriarchy,” in the February ABA Magazine and wrote about it on the Lilith blog: Sisters In Law.

Free Uncontested Divorce Help in New York for Simple Divorces

The New York Access to Justice Program’s Uncontested Divorce Clinic is an incredibly useful service that could hardly be more under-publicized. I am proud to be a volunteer in Kings County and my personal knowledge is based on that program.

If your divorce is sufficiently simple to qualify for the clinic’s help, volunteer lawyers or law students will draft your divorce paperwork for free and explain to you how to file it. They can also help you draft a fee waiver request.

You will have to make an appointment and go in person during clinic hours, which are limited. They will tell you what to bring, likely a copy of your marriage certificate and any prior family court orders.

For our program, we helped people if:

  • They knew where their spouse was and expected their spouse not to contest; and
  • They were filing based on the grounds of a 6 month (or more) irretrievable breakdown of the marriage; and
  • They who were not seeking any division of assets or maintenance; and
  • They had no minor children (or who had family court orders in place for child support and custody); and
  • There were no domestic violence issues (we referred these to other help centers)

Every county New York has a help center; I don’t know whether every county runs an uncontested divorce clinic. I’ve posted contact info for the 5 boroughs below, but here is a link for the full list of help centers. Call or visit to find out whether they have a program and/or make to make an appointment.

Contact information for New York City:
Bronx: Supreme Court Matrimonial Support Bureau, (718) 618-1350, 851 Grand Concourse, Room 121
Kings (Brooklyn): Kings Supreme Court Help Center (347) 296-1740, Supreme Court, 120 Jay St. Room 122c
Manhattan: New York Count – Civil Branch – Help Center (646) 386-3025, Supreme Court Civil Branch, 60 Centre St., Room 116
Queens: Supreme Court Help Center (718) 298-1024, Supreme Court, Room 100 (hours and more information on the website)
Richmond (Staten Island): Supreme Court Help Center, (718) 675-8589, 25 Hyatt Street, 5th Floor

What goes into a surrogacy contract?

Essential Points of Agreement for a Surrogacy Contract
Download as [docx] or [pdf]

Surrogacy arrangements (wherein a woman agrees to bear a child for another person or couple and to relinquish that child to them after birth) can be legally as well as emotionally complex.

While surrogacy contracts are not legally enforceable in many jurisdictions, they can be very helpful for making sure that everybody is on the same page and for minimizing the potential for destructive disputes later.

The following is a list of sample clauses for a surrogacy contract. It is not exhaustive, and not all clauses will be relevant or desirable in all cases. However, I hope it is helpful as an overview of the breadth of issues, life choices, and risks, implicated in a surrogacy arrangement.

Please be aware: I am sharing this list as a potentially helpful general reference only. It is not legal advice. Also note: not all clauses will be applicable, enforceable, or even legal in all jurisdictions. Many clauses will benefit from elaboration according to the particularities of the situation, and/or may be improved with more detailed or jurisdiction-specific language.

Given the legal complexity and often uncertainties involved in surrogacy arrangements, I strongly urge anybody contemplating a surrogacy arrangement to seek legal advice specific to their jurisdiction and personal situation.

The sample contracts from www.allaboutsurrogacy.com contain many helpful models.

General clauses
Declaration of Intentions
Assumption of Risk
Warranties and Disclaimers
Jurisdiction
Financial Issues
Termination of contract
Before pregnancy
Health precautions
Insemination
During Pregnancy
Prohibitions on Surrogate
Obligations
Healthcare
Abortion
Birth and Post-Birth

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Beginner’s Guide to Mitchell-Lama Housing in New York State

Download: Beginner’s Guide to Mitchell-Lama Housing in New York State [docx]. See also:

Beginner’s Guide
-What is Mitchell-Lama housing?
—–Example of a Mitchell-Lama coop listing
-Getting into Mitchell-Lama
—–Applications
—–Succession
———–Definition of family
-Renting versus buying
-Living in a Mitchell-Lama unit
—–Financial reporting
—–Changes in income and household composition
—–Residency requirement
-“Buy-out”
—–Renters lose
—–Buyers win
-Links and resources
—–Regulation: law and reality
—–For prospective occupants
—–On buy-outs

Beginner’s Guide to Mitchell-Lama Housing in New York State

What is Mitchell-Lama housing?

The Mitchell-Lama program helps make renting and cooperative ownership accessible to “moderate and middle income” families in New York State.  Developers get special mortgages and benefits in exchange for making apartments available according to regulations found in two places: 9 NYCRR part 1727 (another unofficial version on the NYC website here:Mitchell-Lama regulations) and Private Housing Finance Law Article 2. Mitchell-Lama occupants qualify by income and family composition, benefit from low monthly costs (tied to their income), and are restricted in their ability to sell, bequeath, transfer, and share their units.

After twenty years, the owner of the building, whether it is still the housing company or whether it is the association of coop owners, has the option of buying their building out (“buy-out”) of the Mitchell-Lama program by paying off the mortgage.  It is impossible to know very far in advance whether and when a building will privatize and the consequences of that privatization on occupants. Generally, a  Mitchell-Lama occupant who is a tenant at the time of privatization risks losing all rental protections (unless the state steps in with subsidies or other measures) while a coop owners stand to reap a tremendous financial boon. The unpredictability of the future of any Mitchell-Lama housing is a confounding factor for individuals making evaluations and decisions about Mitchell-Lama occupancy.

The New York State Division of Housing and Community Development (DHCR) is responsible for regulating and monitoring Mitchell-Lama projects. At least in 2007, the Office of the Inspector General ‘s report found that the DHCR is not doing a great job and there are many areas where how Mitchell-Lama works in theory and how it works in practice diverge, sometimes significantly.

Example of a Mitchell-Lama coop listing

Mitchell-Lama Housing Ad
(from Rochdale Village Inc, website)

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Notes on New York Divorce Law and Mitchell-Lama Housing

Download: Notes on Divorce Law and Mitchell-Lama Housing [docx]. See also: Beginner’s Guide to Mitchell-Lama Housing in New York State

Some basic background research on the lack of information I found on equitable distribution of Mitchell-Lama housing in New York divorces, in case it’s useful.

Notes on Divorce Law and Mitchell-Lama Housing
-Determining and distributing value
-Potentially Relevant Case Law and its Application
—–Who has the right to the apartment?
—–What counts as “permanently vacating?”
—–When does a spouse forfeit their right to equitable distribution of the financial benefit?
-Cases

Notes on Divorce Law and Mitchell-Lama Housing

Determining and distributing value

The apparent value of a Mitchell-Lama unit does not tell the whole story.

A rental unit would be apparently without property value to be divided. A coop would have a readily determinable value: the redemption fee owed to the owner if the owner sold it back to housing company. That amount is calculated according to regulation and based on the (generally quite low) initial investment plus a portion of the overall amortization.

But the true value of a Mitchell-Lama unit may be much greater:

“A tenancy in a Mitchell-Lama development is of enormous value both because rent, being regulated, is far below rents for comparable available apartments, and because where the apartment is a cooperative, or to become a cooperative, the occupant of such apartment may have an opportunity for a sizeable capital gain should the building elect to disengage from the Mitchell-Lama program.” (MATTER OF THOMAS v. DHPD, 12 Misc. 3d 547 – NY: Supreme Court 2006 NY County)

If both spouses are listed on the lease/deed or if the unlisted spouse has been in residence and listed on the yearly financial reports for at least two years, then a couple may come to any agreement they like about who should have possession of their Mitchell-Lama residence because the remaining spouse has the right to succession after the leaving spouse “permanently vacates”.

However, what if the spouses disagree on who should leave or how the financial value of the residence should be accounted for the distribution of property? There is little guidance from the courts: There is no published case law about the treatment of Mitchell-Lama housing in the equitable distribution of property for a divorce.  It is even unclear whether a spouse who leaves before a divorce, who has forfeited his right to return, has also forfeited his right to a share of the financial benefit.

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On Lilith: International Women’s Day, Iranian Women’s Rights

This year, International Women’s Day coincided with Purim. Thanks to that lucky confluence, I was able to spend Purim morning listening to modern Iranian women discuss the the struggle for women’s rights there, which are significantly improved from the time of Vashti and Esther but still have a long way to go.

Listening to Roya Hakakian, Solmaz Sharif, and Arash Abadpour, at the Iran 180  event, spurred some of my own reflections on what Jews struggling with Zionism, diaspora, and identity, might personally and culturally share with Iranians despite the tremendous political gulf between Israel and Iran.

Read the full post.

 

Dissolving an out-of-state civil union in New York

Update

Vermont updated their law to permit non-resident civil union dissolutions! This was fantastic news.

There are criteria and full instructions and forms online (Vermont non-resident Civil Union Dissolutions [PDF]):

1. Your marriage or civil union took place in Vermont.
2. There are no minor children of the marriage or union.
3. You and your spouse/partner live in a state or states that do not recognize your marriage/union for the purposes of divorce or dissolution. To see what states have passed legislation recognizing civil unions or same-sex marriage, click here.
4. You and your spouse/partner have lived separate and apart for at least six months and there is no likelihood that you will resume your relationship.
5. Neither you nor your spouse is the subject of an abuse prevention order in a proceeding involving the two of you.
6. You and your spouse/partner have shared financial information regarding your income, assets and debts and have voluntarily signed an agreement which resolves all issues related to the division of your property, assets and debts and the issue of alimony.

If your situation fits these criteria, this route is much much cheaper ($157.50 total!), simpler, and faster, than seeking dissolution in New York. It is meant to be done on your own, no lawyer required. I personally know of at least one New Yorker who has successfully dissolved their Vermont civil union by this means (despite initial questions over whether New Yorkers would be eligible). You can also start the process here.

Unfortunately, those with New Jersey Civil Unions, children, or ancillary issues, will still need to seek recourse at home. I am leaving this post up in case it is at least a useful start.

Original Post

Today I had to tell someone who came for help with the relatively straightforward (standardized, templates online, etc) paperwork for an uncontested divorce that it won’t do her any good, and she needs file a unique and non-standard motion to dissolve her New Jersey civil union.

It’s a stupid hole in American/New York law that states that don’t provide civil unions don’t provide a mechanism for dissolving them, and states that do provide them will grant civil unions to out-of-state couples but then refuse to dissolve them for lack of jurisdiction. The civil union prevents the members of the couple from remarrying and potentially leaves them vulnerable to legal obligations to or the legal power of a spouse they do not want. And all of this even while most of the United States won’t recognize the validity of their relationship at all.

Thanks to the work of Amy Schwartz, Geri Pomerantz, and the Empire Justice Center, who moved Dickerson v. Thompson, a precedent-setting case, through multiple trials in multiple courts over four years, it is now possible to dissolve an out of state civil union in New York. It requires an “action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.”

There’s no template for it up on the NY State Courts website (yet?). I prepared one with the very kind consultation of Amy Schwartz – all shortcomings are mine alone – and though it has not yet ‘succeeded’ (or indeed been filed), I’m sharing it here in case it’s useful for anyone. No warranties are made, buyer beware, etc.

This action is a very simple version of what might be a more complex document if the couple involved needed the Court to divide assets or address issues of maintenance, child support, and child custody.  Since it was created for a couple with a Vermont civil union, it cites Vermont law. For a New Jersey civil union, one would have to cite the New Jersey law that addresses civil unions and their dissolution, which I believe is here.

The basic elements:

  • nature of the action – declaratory judgment action seeking an order dissolving the Vermont Civil Union
  • jurisdiction – naming the parties, reciting their residences, that New York State jurisdiction is proper under CPLR 3001 & the Supreme Court’s broad equity jurisdiction (cite Dickerson v. Thompson), and venue under 503/509
  • facts and law – Detail the creation of the out-of-state civil union, show that under the laws of the state in which the civil union was performed, the couple would have grounds to dissolve but for that state’s residency requirement, and assert that equity would be served by granting a judgment dissolving their civil union, permitting them to be free of a bond they no longer wish to be in, and to marry others.
  • request – Declaration that the union is dissolved

Verified Complaint For Declaratory Judgment and Equitable Relief

 

On Lilith: Modesty and Freedom

My last post on Lilith was a response to Rabbi Dov Linzer, a prominent figure in Open Orthodoxy, who recently published Lechery, Immodesty and the Talmud in the New York Times.

I find that (at least Jewish) discourse on modesty’s selective focus invisibly and artificially restricts that discourse to protect the status quo and preserve problematic inequalities between men and women that go much deeper than who wears what. Rabbi Linzer’s article, as welcome as it is as a response to fundamentalist Judaism, perpetuates that problem.

Full post here.

On Lilith: Muslim and Jewish Marriage Contracts in American Courts

This post explores how Muslims and Jews, two religious minorities in the United States, have sought to engage their religious marital law with essentially Christian-based American secular divorce law for personal and religious benefit.

“As someone whose interest in secular law grew out of my studies of Jewish law, I’ve always been especially fascinated by the ways in which the two systems of law interact. A recently published article, “How To Judge Shari’a Contracts: A Guide To Islamic Marriage Agreements In American Courts,” got me thinking about some of the parallels and common experiences between Jews and Muslims in interacting with secular American courts…”

Read the full post

New York State Child Support Calculator

NB This has not yet been updated to reflect the increase in default parental income from $136k to $141k.

(Download New York State Child Support Calculator [Excel file])

This spreadsheet allows you to enter the information about parents’ income, number of children, child care, health care,  and educational costs, and will return the default child support obligation for each parent, if that parent were the noncustodial parent.

Updated 2/2012 to reflect the increase of the default parental income cap from $130k to $136k.

Low-income exemptions are based on 2011 Federal Poverty Guidelines ($10,890) and NY Self-Support Reserve (135% of $10,980: $14,702).

By default, formula cells are locked to prevent accidental alterations. Click on Review->Unprotect Sheet. There is no password.

This is accurate to the best of my ability. However there may be errors and use it at your own risk. (If you do find an error, or have other feedback, please let me know!)

Creative Commons BY-SA 3.0 Tara Bognar

Criminalizing polygamists without persecuting polyamorists is hard

(This essay was originally written for my mentor, Diana Adams, and an alternate version is now on the Alternatives to Marriage Blog).

Subtitle: One of the things that’s wrong with Reference re: Section 293 of the Criminal Code of Canada

In 2009, after two failed prosecutions of leaders of British Columbia’s enclave of fundamentalist Mormons – on charges of child trafficking, transporting American girls to Canada in order to marry them to much older men – the Lieutenant Governor of B.C. asked the courts whether those leaders, and other adult men in the community, might be prosecuted simply for polygamy.

Section 293 of the Canadian Criminal Code provides for up to five years imprisonment for the parties to a polygamous relationship and for anyone who participates in or attends at the celebration of such a relationship. It has been on the books since 1890 and successfully enforced twice, in 1899 and in 1906.

Between its poor record and speculation at various levels that prohibiting polygamy might violate Canadian charter rights, such as freedom of religion, freedom of association, freedom of expression, and liberty and security of the person, asking the Court for a ruling on whether s293 is consistent with the Canadian Charter of Rights and Freedoms seems prudent.

The case caught the attention of Canada’s largely secular and dispersed polyamorous community. While the Canadian Polyamory Advocacy Association takes great pains to distinguish itself from the community in Bountiful, promoting equality and progressive values, they have long been critical of s293 for stigmatizing, and potentially criminalizing, polyamorous life choices. They intervened in the case and submitted extensive arguments against the constitutionality of s293.

For reasons explained at great length in his decision, and worthy of a critique all their own, B.C. Supreme Court Chief Justice Bauman found s293 constitutionally valid. Polygamy continues to be a crime.

However, many polyamorists found solace from his statement that “the offence is not directed at multi-party, unmarried relationships or common law cohabitation” [1037].   That solace is (or ought to be) accompanied by dismay, because he continues: “but is directed at both polygyny and polyandry. It is also directed at multi-party same sex marriages.”

OK: multi-party unmarried relationships and multi-party common law relationships

Not OK: multi-party marriages, regardless of the genders of the individuals involved.

Problem:  How do you tell the difference between a criminal multi-party marriage and a legal unmarried multi-party relationship when there is no such thing as multi-party marriage under Canadian law?

Justice Bauman’s ruling assumes that there is such a thing as “marriage” that exists independently of law and into which people can enter without any legal sanction or recognition.

Since participating in a “marriage” could make polyamorous families into criminals, it would seem important to have clear guidelines for how to achieve this apparently platonic, yet legally illegitimate, state of “marriage” – and how to refrain from achieving it in order to avoid violating the law. Justice Bauman excuses himself from that task: “I am not definitively defining “marriage”; it is not my task on this reference to do so.” [1023].

Justice Bauman offers no elaboration beyond the text of s293 itself, which states: “Everyone who…celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship” is criminally liable for polygamy. According to s293, “sanction” by means of “rite, ceremony, contract, or consent,” is what separates an unmarried from a married relationship.

Justice Bauman concedes that it seems absurd that everything turns on what might be single moment of “sanctioning,” but he considers it an appropriate level of absurdity for the Canadian legislature. He compares it to setting the blood alcohol limit for driving at .08 instead of .07; the distinction is apparently arbitrary, but “Parliament can draw such bright lines” [1039-1040]. Blood alcohol level is an objectively measurable thing; what is the bright line between sanctioned and not sanctioned?  Justice Bauman only offers us some synonyms: approve, encourage, and expressly permit [1034].

The implication is that unselfconsciously drifting into a polyamorous relationship is permitted, but holding a commitment ceremony (rite/ceremony) or signing a cohabitation contract (contract) would create a “marriage” and make the “spouses,” guests, officiants, and lawyers into criminals.

What if a polyamorous triad was willing to forego a public rite, and whatever emotional meaning it holds? And willing to forego a cohabitation contract, and whatever legal protections it might provide?

That might be all right as long as they do not actually express “consent” to their own relationship.  Sanction by consent implies that even a private verbal expression of commitment to a multi-person relationship constitutes a “marriage” and subjects the “spouses” to criminal liability.

Thankfully, neither B.C. nor any other province has demonstrated or expressed any interest in prosecuting polyamorous spouses so people probably do not need to worry about promising  to love and care for their polyamorous partners and accidentally ending up “married.” Meanwhile, the B.C. Supreme Court is a trial level court, and the ruling may well be appealed to the B.C. Court of Appeals and even the Supreme Court of Canada, who will hopefully make some more sense of it.

As long as the likelihood for imminent harm seems remote, I’ll admit to wishing that Justice Bauman had provided us some information about platonic polyamorous “divorce,” and how a repentant polyamorous “spouse” could end their “marriage” and be a good law abiding Canadian again.

For enjoyable incisive commentary, I highly recommend Tabatha Southey’s article in the Globe and Mail: “We have as many double standards on polygamy as Solomon had wives.”

To marry or not to marry: A reference for same sex couples in New York

[Download PDF]

New York now recognizes same sex marriage, an unambiguously positive legal development. That does not mean, however, that marriage is the clear choice for all committed same sex couples.

The Defense of Marriage Act continues to allow the federal and other state governments to not recognize same sex marriages, which means that many of the benefits available to married straight couples are not applicable to married same sex couples. Perversely, the drawbacks of marriage are equal if not greater. Additionally, many of the benefits that automatically accompany marriage can be obtained through other means. Given the limited recognition of same sex marriage, even married same sex couples may be advised to use those other means, which further mitigates the advantages of marriage. Finally, registered domestic partnership offers several of the benefits of marriage while being more easily dissolved.

Therefore, the decision of whether or not to marry may be less straightforward for same-sex than for heterosexual couples – even beyond the strong emotional reasons that some couples may bring to the question.

Benefits to a same sex couple residing in New York only available through marriage:

+ Health insurance through spouse’s employer (as long as the employer is not the federal government)
+ Right to hold property jointly as tenants of the entirety
+ Right to statutory regulated intestate inheritance if spouse dies without a will
+ Right to an inheritance from your spouse even if s/he tries to disinherit you (barring a prenuptial waiver)
+ Right to file joint NY state taxes and benefit from spousal deductions and exemptions
+ Right to inherit up to $1 million free of NY state taxes
+ Privilege not to testify against one’s spouse and inability to testify without spouse’s consent as to ‘confidential communications’ between spouses in NY state courts
+ Right to a default regime of court ordered equitable distribution of property in case of divorce (subject to broad but not unrestricted limitation via contract)
+ Assumption of paternity/maternity for a child born to your spouse (not necessarily enforceable out of state)
+ Right to maintain a wrongful death claim or an action for loss of consortium in NY state courts
+ Right to support from spouse, and shared liability for debts

Benefits to a same sex couple residing in NY available through marriage or domestic partnership:
+ Visitation in certain city facilities such as prisons and hospitals
+ Eligibility to qualify as a family member to be added by the New York City Housing Authority to an existing tenancy as a permanent resident, and to maintain occupancy in a rent-stabilized or rent-controlled apartment if it is your spouse who is on the lease and s/he dies
+ If one spouse is a New York City employee, the other spouse is entitled to health benefits and leave for bereavement or child care.

Benefits available to a same-sex couple residing in NY via other legal means:

+ May create an enforceable cohabitation agreement that sets out the terms for distribution of property in case the relationship ends
+ May appoint one another to make health care and financial decisions in case of incapacity
+ May make wills in one another’s favor
+ May adopt in order to acquire parental rights and obligations for one another’s children
+ May name each other as agents for disposition of body in case of death

Potential disadvantages of marriage:

– Dissolving a marriage is, at best, time consuming and costly
– If a couple moves away from a jurisdiction that recognizes same sex marriage, it may be extremely difficult to get a divorce at all
– Spouses are subject to court ordered division of property and orders of maintenance in case of divorce (subject to broad but not unrestricted limitation via contract).
– Personal liability for debts created by a spouse during the marriage
– Obligation to support spouse
– Impossibility of disinheriting spouse (subject to premarital waiver)

Potential future benefits of marriage currently available only to opposite sex couples:
+ Right to joint filing of federal taxes, including applicable spousal deductions/exemptions
+ Right to $5M portable federal estate tax exemption
+ Right to federal gift tax exemption
+ Right to unrestricted rollover of inherited IRA and 401K funds
+ Right to be insured under spouse’s health insurance
+ Right to coverage under spouse’s medicare, disability, and/or social security benefits
+ Right to inherit benefits after death or receive a portion of benefits after divorce, including social security, veterans, and military benefits.
+ Right to sponsor spouse for immigration and/or residency
+ Marriage and spousal rights will be recognized all over the country (and generally throughout the world)

Birth Orders in New York

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(Background reading: What is a birth order?  An Overview)

Summary: New York does not issue pre-birth orders, but it does recognize out of state pre-birth orders. A post-birth order per se does not exist but using orders of maternal and paternal affiliation, it is possible to achieve the functional equivalent of a post-birth order, at least when the intended parents are also the genetic parents in a gestational surrogacy situation.

New York does not issue pre-birth orders, and New York Domestic Relations Law declares (at least commercial) surrogacy agreements to be contrary to public policy.

However, New York upheld a California “pre-birth order and judgment of paternity” (D.P. v. T.R., F-04079-10), based on federal and state law and the full faith and credit clause. The NY Magistrate held that the parentage decision of a California court was entitled to recognition in NY.

  • In that case, two gay men from New York used an egg donor and a surrogate (gestational surrogacy) in California, and got a pre-birth order from California that named both the biological father and his partner as the parents of the yet unborn child. When they broke up years later, the biological father sued the non-biological father for child support. The non-biological father claimed that NY public policy should bar him from being viewed as a legal parent based on the CA judgment, but the Support Magistrate, Rachel Parisi, disagreed.

Altruistic surrogacy agreements do not seem to contravene public policy, and it is not necessary to go through an adoption process after the birth to establish the parental rights of the intended parents.

In August 2011, New York issued a post-birth order of maternal filiation which declared the genetic mother of a child born of a gestational surrogate to be the child’s legal mother. Together, a matching set of orders of paternal filiation and maternal filiation should effectively function as a birth order.

T.V. (Anonymous) v New York State Dept. of Health (2011 NY Slip Op 06229, Decided on August 9, 2011, Appellate Division, Second Department)

In T.V., a married heterosexual couple engaged in an altruistic (non-commercial, no payment) surrogate contract:

  • The gestational surrogate was implanted with eggs of the genetic mother fertilized by the sperm of the genetic father, her husband.
  • The three parties involved – genetic parents and gestational surrogate, sought a pre-birth judgment of parentage, which was denied.
  • When the baby was born, the gestational surrogate was entered as the mother on the birth certificate, with no father listed.
  • After the birth, the gestational surrogate and her husband executed documents relinquishing any and all parental rights to the child.
  • Two weeks after the birth, the Supreme Court held a paternity hearing, taking both couples’ testimony, and issued an order of filiation that recognized the genetic father as the legal father.
  • The two couples then sought a maternal order of filiation to recognize the genetic mother as the legal mother. No maternal order of filiation had been issued or recognized in New York prior to that and the Supreme Court refused.
  • The couples appealed the Supreme Court decision on the basis that allowing a paternal genetic filiation order but not a maternal one violates the United States and NY constitutional equal protection clauses.
  • The Department of Health argued that the biological differences between men and women and/or the state’s interest in establishing accurate parentage justified the apparent violation.
  • DOH also argued that even an altruistic surrogate contract violates New York Domestic Relations Law 122 and that the couple’s request for a maternal order of filiation was contingent on a void and unenforceable contract.

Conclusion: The Court of Appeals found that the Supreme Court does have the authority to issue a maternal order of filiation, that discrimination between demands for maternal and paternal order of filiations after birth is not justified, and that the validity of the surrogate contract is immaterial to the question of the order of filiation, since the court is not being asked to enforce the contract.

Birth Orders: An Overview

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What?

A birth order is essentially a judgment on the legal parentage of a child. If the apparent parents of a child are not the same as the intended parents, which is almost always the case when a child is born via a surrogacy arrangement, the parties involved can ask a judge to rule on who a child’s parents are and issue a “birth order” establishing the child’s legal parentage. It is not available in every jurisdiction.

When?

Some states will allow judges to issue pre-birth orders, and in some states the order is only available post-birth.

  • A pre-birth order will be filed with the county and the hospital, and the hospital will be required to immediately enter the legal parents on the birth certificate, rather than the apparent parents.
    • If a pre-birth order is possible, it is generally advised to begin the process for obtaining one as early in the pregnancy as the viability of the fetus is considered more likely than not – ie, end of the first trimester.
  • A post-birth order can be sent to the relevant authorities in order to obtain a new birth certificate that names the legal parents.
    • Even though the application for a post birth order can likely not be transmitted to the court before the birth of the child, the background work is extensive enough that is advisable to begin the legal paperwork well in advance of the birth.

Why?

Protection/peace of mind for intended and birth parents

  • If issued before birth, it may reassure everyone involved about the future parentage of the child.

Legal enforceability across multiple jurisdictions

  • Court orders carry greater weight than state statute, in terms of being enforced out of state, by virtue of the full faith and credit clause.

Simpler Alternative/supplement to Adoption or Second Parent Adoption

  • A birth order that names both intended parents ought to obviate the need for a second-parent adoption, since as a court declaration of parentage it should be entitled to full faith and credit everywhere.
  • In many jurisdictions, the process for getting a birth order is easier and cheaper than an adoption.

Single Parents

  • Ensure that only one legal parent is recognized regardless of the genetic/birth parents.

Who?

  • Some states require that, in order to issue a birth order rather than go through an adoption process, at least one of the intended parents be genetically related to the child.
  • Some states allow a birth order even without any genetic relationship.
  • Some states regulate surrogacy and only permit a birth order under certain, permitted surrogacy arrangements, which may require that the intended parents be a heterosexual married couple and that they obtain court pre-approval of the surrogacy agreement.
  • Some states do not permit anyone to seek a birth order.

How?

Although the process for obtaining a birth order, when it is possible to do so, is often less costly and less complicated than seeking an adoption or second parent adoption, it is still extremely important to seek legal counsel well in advance of the birth. Some states have strict time limits for the submission of applications and documents, and the processes vary dramatically from one state to another. In some states, the process is so burdensome or exclusionary that it does not make sense to seek a birth order even where it is legally/statutorily possible to do so.

Generally, all the parties involved – intended parents, genetic parents, gestational mother, and if applicable, her spouse, must submit collaborate and participate in the process. Some states require an appearance before the judge while some can be done entirely by correspondence.

(Related: Birth orders in New York State)

Child Support in Shared Custody Situations in New York

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(NB: For a somewhat more up to date discussion on this, please see Attorney Neil Cahn’s July 18th, 2013 article, Parenting Time, Not Legal Custody, Determines Entitlement to Child Support. The gist is that courts should look to the number of overnights with each parent to find the custodial parent (so that parent’s won’t be disincentivized from sending their children to day time enrichment activities, and that where parenting time seems truly even, the less monied parent should be considered custodial for the purposes of child support).

Summary:

  1. Statute law: Under the NY CSSA, child support obligations are always paid from the noncustodial to the custodial parent.
    1. The CSSA does not establish a clear and fair way to determine child support obligations when custody is truly equally shared and there is no obvious custodial and non-custodial parent.
  2. Case law: New York courts have affirmed that the noncustodial/custodial framework must be applied even in shared custody cases, but have established two different and apparently conflicting methods for determining  how to designate the custodial and noncustodial parent:
    1. Bast (1998): When custody is truly equally shared, by default the higher income parent will be designated as the noncustodial parent for the purpose of determining child support obligations.
    2. Riemersa (2011): The court must find a noncustodial parent based on the reality of the children’s living situation. If custody seems otherwise equal, it can consider details such as which parent spends more waking hours with the children.

1: Statute law

Under the New York Child Support Standards Act, the noncustodial parent pays child support to the custodial parent – always. The base payment is calculated by a formula applied to the parents’ incomes, and on top of that the noncustodial parent will contribute to the custodial parent’s childcare expenses, as well as certain other expenses.

For example, if the custodial parent earns 75k while the noncustodial parent earns 25k, by default, the noncustodial parent would have to pay the custodial parent $4,250 per year. If the custodial parent pays $10,000 per year in child care, the noncustodial parent would have to send them an additional $2,500 per year.

That might make sense if the noncustodial parent has the child every other weekend plus two weeks in the summer. But what if the custody arrangement is split 60%/40%? Or even 51%/49%? In that case, the noncustodial parent is almost certainly paying child-related expenses, including childcare, out of pocket. Their childcare expenses alone may be nearly as high as the custodial parent’s. Under the default CSSA calculation, a poorer parent with 49% custody would end up being responsible for paying the entirety of her own childcare costs while also being obliged to contribute to the childcare costs of the richer parent with 51% custody.

Some other states deal with this apparent injustice by using a “proportional offset” method that factors the proportion of custodial time into the calculation of the child support obligation, but the CSSA offers no such solution. Thus, it has been up to the courts to find a solution. Despite the fact that it has now been over thirty years since the enactment of the CSSA, no clear answer has emerged.

2: Case Law

In 1998, the New York Court of Appeals in Bast v. Rossoff affirmed that the proportional offset method could not be applied in New York, and that the CSSA’s basic steps for calculating support apply: Even in an apparently shared custody arrangement, the court must somehow find a custodial parent in order to calculate the noncustodial parent’s default support obligation. The court may find that obligation unjust, in which case it must order a deviation, but it must justify the deviation according to the factors listed in Domestic Relations Law § 240[1-b][f].[1]

Bast did acknowledge that the court will only be able to identify which parent has more physical custody in “most,” as opposed to all, instances, and did not provide further guidance.

Two later cases rely on Bast to offer two different approaches to the question.

Baraby v. Baraby (1998, 3rd Department), decided only months after Bast, rules that in a case of shared custody, the best interests of the child suggest that the parent earning the greater pro rata share of the total child support obligation be deemed the noncustodial parent for the purpose of calculating a default child support order.[2]  (The 4th Department upheld Baraby and applied this method in Carlino v. Carlino, in 2000). 277 AD 2d 897 – NY: Appellate Div., 4th Dept. 2000

Riemersma v Riemersma(2011, 3rd Department), in contrast, implies that with enough ingenuity, it is possible to find the greater physical custody of one parent even in an apparently equally shared situation: it tabulated the parents’ custody times against the children’s sleeping times in order to find that the parent with more ‘awake’ hours is the custodial parent.[3] In an outcome apparently the opposite of what would be ordered under Baraby, it ordered the father, who had more ‘sleeping’ hours, to pay child support to the mother even though he earned significantly less income and cared for the children for seven days out of every fourteen.

 

 


[1] The financial resources of the parents and the child, the standard of living the child would have had if the marriage had not ended, nonmonetary contributions of the parents toward the child, extraordinary expenses incurred in exercising visitation and “any other factors the court determines are relevant.”

[2] “We interpret Bast as requiring application of the CSSA to such situations to assure that children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their pre separation standard of living in each household. In order to effectuate this goal, where, as here, the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the “noncustodial” parent for the purpose of support regardless of the labels employed by the parties.”

[3] The parents worked opposing shifts, and each parent would care for the children while the other was working. The court decided that since the mother worked night shifts, and thus had the children while they were awake, and the father worked day shifts, and had the children while they were sleeping, the mother spent more time with the children and was the custodial parent, and the father would pay support to her despite her higher salary. (Riemersma v Riemersma, 2011 NY Slip Op 03702 [84 AD3d 1474])