What is a Homestead Declaration and Can it Protect my Family?

Whether it is a house, a condo, or a townhouse, our homes are more than just where we live - they are often our largest single asset and our most significant investment. For that reason, it's important that homeowners take advantage of the Massachusetts Homestead Act, which offers homeowners and their families significant protection from creditors.

How it Works. A homeowner who files and records a Declaration of Homestead with the appropriate Registry of Deeds acquires an Estate of Homestead, which the equity value of your primary residence, up to $500,000 above any mortgage on the property, from the reach of creditors. Only homeowners who record a Declaration of Homestead for their residence are eligible for these protections. And time is of the essence, as the protections afforded by the Declaration of Homestead will apply only to debts or claims that arise after the Declaration is recorded.

What it Does (and Doesn't) Protect Against. A Declaration of Homestead might come into play in the following scenarios: (i) where a homeowner gets into a car accident and the injured party seeks an attachment against the home; (ii) where an unsecured creditor seeks to obtain an attachment or pre-judgment lien against the home; or (iii) where the homeowner is a business owner, lawyer, or medical professional who is subject to professional liability or other law suits.

A Declaration of Homestead will not protect against all debts or claims, however, and the most significant exclusions include: (i) debts or claims acquired by the homeowner prior to the recording of the Declaration; (ii) for debts arising out of the Homestead (like mortgages); (iii) a judgment execution issued by a probate court to enforce the payment of support to a minor child or spouse; and (iv) it will not prevent the recording of a tax lien or the sale of the homestead for debts in the nature of local, state, or federal taxes.

Will it Protect Same-Sex Couples and their Families? The Homestead act protects the owner of real property (whether a sole owner, joint tenant, tenant-by-the-entirety, or tenant-in-common) and his or her family. Under the Act, a "family" may consist of (i) a sole owner, (ii) spouses, (iii) a parent and his or her children, and (iv) spouses and their child or children. Because the Act is a creation of Massachusetts law, and federal tax and marriage laws to not apply, the protections afforded by the Declaration of Homestead apply equally to same-sex couples and their children as to opposite-sex couples.

When an individual who has recorded a Declaration of Homestead passes away, the law continues to protect the primary residence until the youngest child, if any, turns 18 or becomes married and until the surviving spouse, if any, dies or remarries. Even though the same-sex spouse of an owner is protected by the Homestead Act, any biological children of the non-owner spouse should be properly adopted by the owner spouse to ensure the full protection of the residence for their benefit.

Legislation has been filed which would make the Homestead protection available automatically to the owners of real estate. If and until such legislation passes, owners must prepare and record a Declaration of Homestead in order to protect their property. Usually, an attorney can prepare this relatively simple form for a small flat fee (in addition to the court filing fee of $35.00) and record it in the appropriate registry.

California Gay Marriage Primer

Now that gay marriage is set to become legal in California on June 17, 2008, how will it actually work? The following is a short list of articles and resources to help guide prospective brides and grooms in the state of California:

• Online LGBTQ magazine EdgeBoston has posted a very brief Q & A on the practical details of gay marriage in California: "Cali Gay Marriage 101". For example, "QUESTION: What’s required [to get married]? ANSWER: All that’s required of straight couples: A valid ID proving you’re both 18 or older. Most counties accept walk-ins, but appointments get speedier service.And the cost? In Sacramento County, for example, it’s $77 for a marriage license; $86 for a ceremony."
  
• A June 13, 2008, Los Angeles Times article outlines in greater detail some of the logistic and practical questions facting clerks, advocates, and those seeking to obtain a same-sex marriage in California, including whether same-sex marriages performed in Massachusetts, Canada, or Spain will be automatically recognized by California on June 17, 2008.
  
• The California Department of Public Health website has published updated Marriage License Information, including an update which includes updated marriage forms, and an open letter of instruction to all the county clerks and recorders.
  
• The website WeddingVendords.com is posting updated information on same-sex marriage in California, including the cost of a license, residency requirements, change-of-name information, as well as a directory listing the addresses and telephone numbers of each of the county clerks in California.
• About.com has posted an article with more information on applying for a marriage license in the state of California.

To all those who plan to take advantage of marriage equality in California when it becomes legal on June 17, 2008, and the countless others who may choose to do so in the future, congratulations!

Domestic Violence in the Gay Community; Information and Resources

The Gay Mens Domestic Violence Project in Cambridge, Massachusetts, estimates that 1 in 4 gay men will experience some sort of abuse in the context of an intimate relationship with another man. A 2002 study conducted among approximately 2,881 men in the cities of San Fransisco, Los Angeles, New York, and Chicago, reported the following rates of abuse among men in relationships with other men:

• Psychological/symbolic battering 34%
• Physical battering 22%
• Sexual battering 5%
  

The Massachusetts Abuse Prevention Act (M.G.L. c. 209A, commonly referred to as "209A") defines abuse as the occurrence of one or more of the following acts between family or household members:

• attempting to cause or causing physical harm;
• placing another in fear of imminent serious physical harm; or
  
• causing another to engage involuntarily in sexual relations by force, threat of force or duress.
  

Chapter 209A protects victims of abuse regardless of the gender of the victim or perpetrator. According to the GMDVP website, some examples of the types of relationships covered by "209A" include: an ex-lover/partner, a lover/partner living in the same household, a lover/partner living in a different household, a spouse or an ex-spouse, a roommate/housemate, a caregiver living in the same household, a person with whom you had or have a dating-type relationship, for a while.

As the Gay Mens Domestic Violence Project website points out, domestic violence can affect victims in almost every aspect of their life, including Housing, Education, Employment, Immigration, and Child Support/Visitation.

One option for victims of abuse, although not always the most effective, is to obtain a restraining order against their abuser in the Probate and Family Court or District Court. A person may seek a restraining order, regardless of sexual orientation, age, gender, or marital status, to prevent future incidents of abuse. Violation of a restraining order by the abuser is a criminal offense in Massachusetts, and there are no court costs for victims in obtaining one.

Through a restraining order, you can ask a judge to order any or all of the following:

• that the abuser not abuse you from now on (typically known as “refrain from abuse”)
• that the abuser leave the apartment or house if you live together (a “vacate order”) regardless of whether the abuser’s name is on the lease or mortgage; (an order requiring the abuser to leave his or her leased apartment or owned home will be temporary)
• that the abuser surrender weapons (guns), ammunition and/or Firearm ID Card, etc.
• that the abuser stay a certain distance away from you; that the abuser have no further contact with you, whether directly or through a third party (for example through friends, co-workers, or family members)
• that you be granted temporary custody; temporary child support; reimbursement for expenses related to the abuse
• that the abuser return items that they possess which would grant them access to you, including keys, garage door opener, etc.

The GMDVP publishes a two-page Domestic Violence Services Brochure, which can be downloaded here in its entirety, and which contains information on identifying abuse, getting emergency help, safety and legal resources, and support.

California Supreme Court: Gay Marriage Ban Unconstitutional

On Thursday, May 15, 2008, the California Supreme Court struck down California's ban on same-sex marriage and ruled that the state's current Domestic Partnership laws were constitutionally inadequate in an historic 4-3 decision.

The cases under review were brought by the city of San Francisco, two dozen gay and lesbian couples, Equality California and another gay rights group in March 2004 after the court halted San Francisco's monthlong same-sex wedding march that took place at Mayor Gavin Newsom's direction.

The legal issues involved in the California case differed slightly from court cases brought in other states, like Vermont and Massachusetts, because California's statutory Domestic Partnership scheme already provides same-sex couples access to essentially all the rights, privileges, and responsibilities as opposite-sex married couples. In this way, the dispute was less about substantive tangible rights, which same-sex couples already theoretically enjoyed in California, and more about the constitutionality of providing a separate-but-equal statutory scheme for same-sex couples.

As the Court put it, "the question ... is whether ... the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution."

Also of interest is that the California Court (unlike Massachusetts) framed its constitutional equal protection analysis of classifications or discrimination on the basis of sexual orientation as one deserving a greater scrutiny, or "strict" judicial scrutiny, requiring the state to demonstrate the classification to be "necessary" for the purposes of some "compelling state interest".

The court reasoned that, in "Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest."

In reaching its decision, the Court drew heavily from the tradition of cases overturning laws barring interracial marriage, (like Perez v. Sharp and Loving v. Virginia) when it proclaimed that "Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right."

The Court decided in its majority opinion, "that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage."

In practical terms, the court issued a Writ of Mandate directing all state and local officials and clerks to take the steps necessary to carry out the ruling of the Court, and to perform their duties in a way that is consistent with the Court's decision. The Court remanded the decision to the Appeals Court for further necessary action consistent with therewith.

The full text of the California Supreme Court decision, In Re: Marriage Cases, can be viewed here in its entirety.

Mildred Loving, Plaintiff in Interracial Marrige case (Loving v. Virginia) Dies at 68

In 1967, Mildred Loving and her husband, Richard, pictured left, successfully challenged Virginia's laws prohibiting marriage between persons of different races. The unanimous landmark Supreme Court decision in Loving v. Virginia (which can be viewed here in its entirety) not only struck down state anti-miscegenation laws like the one in Virginia, but would also become an essential tool in the legal fight for same-sex marriage equality.

In striking down Virginia's law, which made it a criminal offense to marry a person of a different race, the Court drew on both Equal Protection Clause and Due Process Clause principles.

The Equal Protection Argument

The Court found that, "there can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race."

The Court would reason that, "At the very least, the Equal Protection Clause demands that racial classifications, ... if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate."

The justices concluded there were no articulable rationales for the law other than hateful and invidious discrimination on the basis of race. The Court held that without such a permissible (or even rational) state objective, anti-miscegenation laws worked to deprive the plaintiffs' of their Constitutional guarantee of equal protection under the laws.

The Due Process Argument

The Court's Due Process Clause analysis in the Loving Decision is also significant to those who continue to advocate for a continued expansion of marriage equality.

In its Decision, the Court examined the very institution of marriage itself, and described it as one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)." The Court went on to reason that, "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."

The last paragraph of the Decision proclaims that, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

This Constitutional declaration would reverberate and resurface decades later as same-sex couples presented their families and relationships to the Courts for legal recognition and protection.

The Fight for Expanded Marriage Equality

Although numerous important cases would provide fertile soil for the groundbreaking Massachusetts same-sex marriage case of Goodridge v. Dep't of Public Health (Griswold v. Connecticut, Romer v. Evans, Lawrence v. Texas, Baehr v. Lewin, Baker v. State of Vermont, etc.), the powerful and analogous Loving v. Virginia decision would provide a narrative backdrop for the Massachusetts decision.

For example, the Court observed that, "Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

And just as the Supreme Court had done in the Loving case, the Massachusetts SJC waded through the State's proffered rationals for a prohibition on same-sex marriage and found that: "The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.

The Court concluded that "Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution."

Talking to Children About LGBTQ Familes *A Free Online Resource*

Even before children are old enough to understand verbal language, they are learning about and observing human relationships, identity, and family structures. For all parents, it can be challenging to communicate difficult concepts such as marriage, reproduction, adoption, and human relationships.

For LGBTQ parents, we may find it especially difficult to talk about and explain our families and relationships to children in age-appropriate ways. Consider the following: "Where do I come from?" - "Why am I the only brown one in our family?" - "Some kids asked me if my mom is a lesbian. I don't know what to do." - "Why does Maria have a mom and a dad?" - "Everyone uses 'gay' as an insult and the teachers don't say anything."

The Boston based Family Equality Counsel has produced a free six-page publication entitled Talking to Children About our Families to help LGBTQ parents talk about and explain their families to children of various ages. Download it here. The publication contains age-appropriate language and examples of the type of questions you might expect from your own children or other children in your life.

As the publication explains:

"The presumption of a mother and father creating a child (which may be valid for some of our children) is one with which our children will be saturated through their daily interactions with children’s books, the media, school personnel, peer discussions and exposure to various family models. It is your job as a parent, whether you identify as part of the LGBTQ community or not, to teach your children about different family constellations."


and goes on to point out that:

"Very young children are not naturally inclined to make judgments about family structure. They see family configurations as a matter of fact. As children become a part of the larger peer culture, they will be exposed to other peoples' judgments of their families. The earlier children are given appropriate information about their lives and their families, the easier it will be for them to understand and appreciate them."

Ten Thoughts on Advanced Health Care Planning

None of us ever expects or plans to become ill or injured. However, it is likely that each of us will - at one time or another - be unable to make or communicate our own health care decisions. Whether the medical condition is temporary or permanent, each of us has the opportunity while we are alert, competent, and healthy to appoint another person as medical decision-maker just in case. Often this takes the form of meeting with an attorney to execute a Health Care Proxy and perhaps a Living Will. For gay, lesbian, bisexual and transgender people, the need to spell out our wishes and appoint an appropriate health care decision-maker is an absolute necessity.

The Forum for Massachusetts Law (http://www.malawforum.com/) recently posted Ten things to consider when contemplating or planning your advanced health care plan:

"1. Executing a Living Will is not enough. Although Living Wills are useful documents, they are not statutorily recognized in Massachusetts, and doctors and hospitals are not required to adhere to the wishes expressed in your Living Will. You need to execute a Health Care Proxy that names an Agent who will enforce your wishes.

2. In addition to identifying the Principal (you) and your Agent, your Proxy must state that you intend to grant to your Agent the authority to make health care decisions on your behalf; describe any limitations you wish to place on your Agent; and indicate that your Agent's authority becomes effective only if you subsequently lose capacity to make medical decisions. (Also, it is wise to include the addresses and telephone numbers of your Agent and Alternate, so they can be located quickly).

3. Your Proxy must be signed by you or at your direction in the presence of two adult witnesses. The witnesses must then sign and affirm that you appear to be at least eighteen, of sound mind, and under no constraint or undue influence. (It's a good idea to follow these rules if you execute a separate Living Will.)

4. The witnesses cannot be named as an Agent or Alternate Agent. And an operator, administrator, or employee of a medical facility where you are, or may be, a resident or patient cannot be your Agent, unless she is also related to you by blood, marriage, or adoption.

5. Do not hide your Proxy and Living Will in a safe. Execute five or six originals, one for your primary care physician (with oral and written instructions to place the documents in your medical records), one for your medical records at the hospital you are likely to end up at in an emergency, one for your Agent and one for your Alternate, one for your own records, and a copy for your lawyer's safe.

6. If you spend a lot of time in another state (winters in Florida, for example) you should consult an attorney in the second state to ensure that your Proxy will also be recognized there.

7. If your Agent is your spouse, and you divorce or are legally separated, your entire Health Care Proxy is revoked. In other words, your Alternate Agent cannot step in and take the place of your spouse. In this case—or if you revoke your Proxy orally or by drafting a substitute—you should collect your old documents, destroy them, and distribute your new Proxy.

8. Select your Agent and Alternate carefully. Make sure they understand your wishes and are willing to do all they can to ensure they are honored. Communication is vital.9. Express your wishes as clearly as possible in your Proxy and Living Will. Clarity and brevity will help your Agent, family, and doctor understand your wishes.

10. Communicate, communicate, and communicate.

a. Talk to your family about the wishes you have expressed in your Proxy and Living Will and tell them who you have selected as your Agent and Alternate. Surprise, hard feelings, or controversy around your hospital bed may create an unpleasant situation and could result in your wishes not being honored.

b. Talk to your doctor about your Proxy and Living Will. Make sure she, and the facility at which she enjoys staff privileges, are willing to honor your wishes."

Inside Proposed Transgender Civil Rights Legislation, Massachusetts House Bill 1722

On January 10, 2007, legislative sponsors in the Massachusetts House of Representatives unveiled House Bill #1722, entitled: "An Act Relative to Gender-Based Discrimination and Hate Crimes". The Bill proposes specific statutory legal protections for transgender and gender non-conforming persons. While the Bill has a long way to go before it becomes law, it has received the support of a number of well-known state Reps, Massachusetts Attorney General Martha Coakley, and Representative Barney Frank.

The proposed Act, which can be read here, amends Massachusetts's existing discrimination laws, including the hate crimes law (M.G.L. c. 22C sec. 32), non-discrimination in education laws (M.G.L. c. 71 and 76), non-discrimination in employment and housing laws (M.G.L. c. 151B), and non-discrimination in public accommodations law (M.G.L. c. 272), to include a proscription of discrimination on the basis of "gender identity or expression".

The proposed Act defines "gender identity or expression" as "a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual's assigned sex at birth." Currently, there are no laws explicitly protecting transgender persons and other persons facing discrimination or violence either (i) because their gender identity differs from their assigned sex, or (ii) whose gender identity, behavior, or appearance clashes with society's stereotypical gender expectaions.

In the absence of specific statutory authority, some lower state court judges in Massachusetts have begun to use existing non-discrimination laws which prohibit discrimination on the basis of "gender" or "disability" to find needed protection for transgender persons. According to the Massachusetts Transgender Political Coalition (MTPC), "[t]ransgender people derive some protections from ... various MCAD and court rulings but they are not explicitly protected by our laws.

The inclusion of gender identity and expression in our non-discrimination and hate crime laws achieves three important goals:

• It makes a clear statement of statewide policy.
• It makes clear the scope of coverage to anyone who reads the laws or encounters materials related to them.
• It affirms the Commonwealth's commitment to fair treatment and freedom from discrimination, crime, and violence for all its citizens."

The Joint Committee on the Judiciary will hold a public hearing on the proposed Bill at the State House on March 4, 2008.

Civil Unions. What They Are; What They Aren't.

On January 1, 2008, New Hampshire became the fourth state in the nation to grant civil unions to same-sex couples. Currently, civil unions are recognized in Vermont, New Jersey, and Connecticut, while both California and Oregon offer Domestic Partnership Laws, which offer substantially similar rights and protections.

What is a Civil Union? Civil union laws attempt to create a legal status parallel to that of marriage. The New Hampshire legislation creating civil unions is entitled, "An Act Permitting Same Gender Couples to Enter Civil Unions and Have the Same Rights, Responsibilities, and Obligations as Married Couples". The idea is to provide separate-but-equal rights, protections, and obligations for both same and opposite-sex couples.

No Fixed Legal Definition. Marriage creates a familial relationship between two persons which is recognized across cultures, religions, and around the world. The institution of marriage is ubiquitous and needs little explanation. In contrast, civil unions exist in only a handful of places around the world, are not imbued with universal meaning, and have no fixed legal definition. In other words, the definition of a civil union is whatever the granting state's legislature decides it is: there is no guarantee that State A will grant the same rights and benefits to a same-sex civil union as State B. And while all states have a framework for marriage creation and dissolution, not all states have a framework in place for civil unions.

Civil Unions Provide Some Tangible Benefits. Civil union laws dramatically underestimate the social and cultural significance of the institution of marriage. Even a civil union law which provides all the economic and legal rights and benefits of a marriage still deprives same-sex couples of the rich social and cultural benefits, as well as dignity and security, attached to the word 'marriage'. For an eloquent discussion on the intangible benefits associated with marriage, read the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Dep't of Public Health.

Civil Unions Provide only State Rights and Benefits. A civil union provides only some of the state rights and benefits granted to married persons, and do not confer over 1,000 rights and benefits conferred by the federal government. And while the 1996 Federal Defense of Marriage Act (DOMA) currently denies federal recognition of same-sex marriage, the likely repeal of DOMA will entitle same-sex married couples to the full spectrum of federal rights and privileges. As presently drafted, the civil union laws of Connecticut and Vermont grant only state-level rights, and do not contemplate the provision of any federal rights and privileges.

Civil Unions Invite Unequal Treatment. Same-sex marriages originating in Massachusetts are quickly spreading throughout the country. As same-sex marriages cross state lines, new states are being challenged to apply their existing marital structure to these couples, including laws relating to inheritance, divorce, adoption, spousal and child support, access to health and financial records, etc. Without a historical and legal tradition of recognition, state courts and legislatures may not be as compelled to extend reciprocal rights to civil unions. Same-sex married couples may be in a better position to challenge the federal government's unequal treatment of their marriage compared with opposite-sex marriages. Civil unions, as a separate legal institution, are susceptible to unequal treatment.

A Civil Union is Not Marriage. Although civil unions represent a momentous practical step forward for same-sex couples living in the states that grant them, a civil union is a political compromise. A civil union is not marriage.

(Given the current patchwork of various state and federal laws relative to the recognition of same-sex relationships, couples considering entering into a civil union or a marriage should consult with an attorney first, as a change in status could effect property ownership, inheritance, immigration status, adoption rights, military benefits, etc.)

Domestic Partnership Agreements

A Domestic Partnership Agreement (DPA) is a contract between two persons which describes how property and assets are owned, how finances are held and managed, and how any property should be divided in the event that it becomes necessary (much like a Prenuptial Agreement). A DPA can help prevent disagreements about property and finances before they arise by encouraging communication and understanding between the parties. In the event of break up or the death of a party, a DPA can greatly ease the division and distribution of property.

Same-sex couples who choose to become married in Massachusetts are automatically subject to the well-established laws and principals governing marriage, including dissolution, property ownership and division, spousal financial support, etc. But for those couples who either choose not to be married or are unable to marry in their state, these "default" set of marriage rules do not apply.

Couples should consider creating a DPA which sets out, in writing, the intentions and expectations of both parties regarding their relationship. An Agreement of some kind is most important for couples in long-term relationships who will likely mix their assets and property, and who share expenses and other responsibilities. Even couples who find themselves to be completely broke would benefit from a written DPA which sets out how property or income will be handled when it does arrive.

You should have an attorney draft these important Agreements, especially if significant assets are involved or if a disparity exists in income or assets between the parties. A court will not enforce an agreement where one party has taken advantage of the other party, or where one party hides property or assets from the other party. To increase the chances that a court will enforce your agreement, each party should have the DPA reviewed by his or her own attorney, and a full disclosure of assets and liabilities should be made.