Greater San Diego Business Association
A Rose by any other name...
By: Rivka Israel, Esq.
Civil Unions, Domestic Partnerships, Same-sex Marriage are they the same and what are the differences? Though the differences are beginning to dwindle, there are certainly differences when it comes to obtaining rights. In the context of the dissolution of a relationship, at this point in time, the practical application is, however, pretty much comparable. Let’s take a look at what that means.
When one enters into a legal relationship, either by marriage, civil union, or domestic partnership, they are giving their relationship some type of legal standing which much be dissolved through legal action. Practically, this means that if you choose to enter into a legally recognized relationship you will have to go through a legal divorce to end that relationship. This may seem obvious to some of you but for others this may come as quite a surprise. On the other hand, regardless of the title your legal relationship, as long as it is legally recognized by the state of California, you do get the basic rights of spouses as long as you remain in this state. It may come as no surprise that this statement actually requires some explanation as well.
As of January 1, 2005, any same-sex relationship legally entered into in another state became legally recognized in the state of California, with the exception of same-sex marriage. A same-sex marriage legally entered into in another state was not recognized in California until 2009, when the legislature passed Family Code Section 308 which recognized same-sex marriage legally entered into in another state before November 5, 2008 as valid marriages and those entered into after that date as something other than a marriage but still granting the same rights. The rights of legally recognized relationships between same-sex couples include custody of joint children, spousal support, child support and community property. Theoretically it also means that you have the right to inherit and to make medical decisions for each other. However, these rights have historically applied only in state court and within the state of California or other state that legally recognizes the relationship. These rights did not extend to any federal rights or in federal courts.
So, why does it matter which form of legally recognized relationship you entered into? Early on, when legally recognized relationships for same-sex couples began, the rights granted to the different types of relationships were comparable and the federal rights were unavailable across the board. This is no longer the case. Through litigation and higher court decisions the rights of same-sex married couples have been growing. Unfortunately, the process has been slow and painful. Recent court decisions have held that same-sex married couples have the right to federal benefits such as joint filing of bankruptcy, federal spousal employment benefits, and perhaps even immigration protection status. The higher courts have been holding DOMA to be unconstitutional and unenforceable by a court of law.
So, does a rose by any other name smell as sweet? The answer is no, the name matters and separate is not equal. While this entire subject of legalized relationships for same-sex couples may appear to some to be merely a social issue, it is in fact a Civil Rights issue and should be understood as such. This area of the law is constantly changing and I encourage the readers of this article to subscribe to my blog or follow my Facebook or Twitter feeds to stay up to date on those changes. I also encourage readers to submit questions and/or suggestions for article subjects to me and I will try to address those issues in ongoing blogs or articles.
Rivka Israel, Esq. is a local Family Law attorney and can be reached at LavenderLegal@yahoo.com, by telephone at 858- IT’S-EASY (487-3279) or on the web at FamilyLegalEase.com