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Supreme Court Strikes Down DOMA (Defense of marriage act)


In a landmark decision, hailed by equal rights advocates all over the country, a divided U.S. Supreme Court struck down a section of DOMA (the Defense of Marriage Act) that denied legally married same-sex couples the same federal benefits that are provided to heterosexual spouses. Prior to the Court’s ruling, DOMA defined marriage as only between a man and a woman.

“Although Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment,” said Justice Anthony Kennedy. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The case before the Court examined whether the federal government could deny heath, tax and pension benefits to same-sex couples in states where they can legally marry.  For example, in Massachusetts same-sex couples can be lawfully married, but before yesterday’s ruling their marriage wasn’t recognized by the federal government under the DOMA. Now, the federal government will have to recognize same-sex marriages from other states like Massachusetts and provide equal benefits to all.

In the Court’s written opinion, Justice Kennedy affirmed the rights of same-sex couples by recognizing that for those who “wished to be married, the state [of New York] acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the state worthy of dignity in the community equal with all other marriages…DOMA seeks to injure the very class New York seeks to protect.”

While the decision is seemingly sweeping in scope, it is limited to providing federal benefits to those who are lawfully married in states that recognize same-sex marriage. Currently thirty-five states have laws that ban same-sex marriage according to a report on CNN.com.

 
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Posted by on July 8, 2013 in Uncategorized

 

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Utah Man’s Self-Penned Obituary: Lessons We Can Learn


 

Patterson’s Obit

An obituary written by a 59 year old Utah man who died of throat cancer has gone viral.  Apparently in his obit, Val Patterson, spoke sweetly of a well-lived life and expressed his undying love for his wife who watched and cared for him as his cancer drained him.  But, Patterson also used his obit to expose his biting humor and to reveal some little known secrets about himself according to reporter A.J. Willingham of HLNTV.com (see Willingham’s full story here).

I guess that Patterson let the world and his colleagues believe that he held a PhD from University of Utah. Yet in his obit, he admitted that it was the result of a filing error made by a receptionist who collected his college loan payment.  He apologized to all the electrical engineers with whom he worked and in his defense pointed out that his designs were well engineered and that he made everyone laugh at work.

While there are many touches of humor throughout, it’s Patterson’s expressions to his wife that are particularly touching.  He revealed his regret that he felt invincible when he was young and that he smoked cigarettes that, in the end, robbed his “beloved Mary Jane of a decade or more of the two of us growing old together and laughing at all the thousands of simple things that we have come to enjoy and fill our lives with such happy words and moments.”

When I saw Patterson’s story it made me think about my own mortality and what my obituary might one day look like. Now, I’m not saying that I’m planning on sitting down sometime soon to write my own obit. But, I do know that I have taken the time to explain to my loved ones what my own personal wishes are about how I’d like my life celebrated after I’m gone. And, I’ve done so in writing.

You see, I have very particular views about how I want to be treated after I die. And, I know that those views might not necessarily be shared by everyone in my close family.  So it’s imperative that I express those views in writing while I’m alive so that those left behind will have to follow them when I’ve shuffled off this mortal coil.

Believe it or not, that’s what I advise clients whom I see when they are doing their estate planning. Let’s face it, doing the legal planning for your demise is a somewhat morbid topic. But, it’s a lot more than just deciding who’s going to get your house and who’s going to get your cash when you’re gone.

I think that there’s an element of memorializing your legacy. Creating something that people will remember you by.  Val Paterson knew that he was succumbing to his throat cancer and he had the foresight to write that legacy down. We can learn a lot from Mr. Paterson about living life and leaving a legacy. 

 

 
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Posted by on July 18, 2012 in Wills & Trusts - the Basics

 

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July Fourth is My Favorite Time of the Year!


July 4th has always been one of my favorite times of the year. I was a history major in college (S.M.U. to be exact – and, I’m talking about THE SMU that we know here in the SouthCoast – Southeastern Mass. University now known as UMass Dartmouth). As a history major, I was always drawn to the struggles of our Founding Fathers in forming this great nation of ours. To this day, I enjoy programs and books about that era and still enjoy learning.

Now in the interest of “full disclosure,” I have to admit that I also love it because my birthday is merely 2 days away from the Fourth. I’m a July 2d baby (why couldn’t my mother wait two more days???? Just kidding Mom.), so we’re always celebrating my birthday with fireworks and cook outs too. Funny, my birthday cakes have always been red, white and blue for as long as I can remember!

Regardless what you do today, whether you’re having a cookout, watching a great fireworks display, or even having a birthday party – have a happy AND safe Fourth of July!

 
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Posted by on July 4, 2012 in Uncategorized

 

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A Father’s Day Message. A Father. A Teacher. A Hero


My father is my hero. Truth is that I can’t tell you a heart-wrenching story of inspiration about my father. I can’t tell you that he’s rescued someone from the jaws of death. Or, that he’s helped underprivileged children overcome tremendous odds against them.

Manny Garcia. A father. A teacher. A hero.

What I can tell you about my father, though, is that he is a man of strong conviction. He is a man that never accepts defeat. He is a man that will rise to a challenge. He is a man that always thinks of his family first – my mother/his wife, his children (me included), his siblings, his nieces and nephews, his cousins…all of them.

My father was brought to this country by his family when he was 7. He came from a small village in the Azores. He lost his father at a very young age. He was the youngest of 4 children, but he grew to be a leader of them all. A stalwart.

He grew up in New Bedford and from all that I know he began working to earn money for his family at a very young age.

However, his circumstances never stopped him from succeeding. He was the first of his family to get himself into college (New Bedford Institute of Tech). Like many people in that time he and my mother married at an early age. He worked for someone for a little while and then started his own engineering business. He never worked for anyone after that. He survived through the highs and the lows. He raised a family of 3 kids. He built the house in which we all grew up with his own hands. He became a successful Moderator of our Town Meeting for 20 years.

He became well known and respected by so many in our community. Even those who disagreed with him had to admit that they respected him.

He put his 3 children through college and me through law school. We never struggled with poverty or neglect because he always worked for our survival and happiness.

Looking back at everything that he did, I learned so much from him – things that I could never learn in school. He taught me the value of education. He taught me the value of working hard. He taught me the value of setting goals and always trying to achieve them. He taught me the value of never giving up, while at the same time teaching me the worth of strategically retreating when the circumstances called for it. He taught me how to be a father, a friend, a kind person.

For the 46 years of my life I’ve watched him. Like most kids and teenagers, in my early years, I never appreciated him or what he did. But, as I’ve grown older I’ve learned wisdom from him and discovered that he was my best teacher.

My father is my hero. When I am on my deathbed, if I can say that I became only half the man that he was, then I know that I will have succeeded and lived a good life…thanks to him.

 
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Posted by on June 15, 2012 in Uncategorized

 

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Massachusetts Does Not Recognize Common Law Marriage


Massachusetts does not recognize the doctrine of “common law” marriage. It doesn’t matter how many years you’ve lived together, it could be 7 years or 70 years, you cannot have a marriage under common law in Massachusetts. This is true for both heterosexual couples and same sex couples.

Only a limited number of states in the United States recognize common law marriage – nearby Rhode Island happens to be one of them. Generally, though, in those states that do recognize common law marriage it isn’t the number of years living together that matters, it’s usually the “intent” of the couple. They must intend to be considered to be married, they must act like they are married in the community, and they must live together (the length of time usually doesn’t matter).

If you do live in a state that recognizes common law marriage and you break up, then the laws of divorce in that state will control the breakup. In a state like Massachusetts that doesn’t recognize common law marriage, when a couple breaks up the divorce laws DON’T apply.

So when a cohabiting couple breaks up in Massachusetts are there no rules that govern the division of the couple’s affairs?  Massachusetts courts have adopted the view that unmarried cohabitants may lawfully contract concerning property, financial, and other matters that affect their relationship. Couples can execute “cohabitation agreements” which are written contracts that will outline how matters are handled if the couple breaks up or if a partner dies.

Since most cohabitants don’t write cohabitation agreements, but probably have more oral promises about what to do if they split up, courts have to address the division of the couple’s affairs in different ways. Generally, courts will enforce oral agreements between cohabitants, but the problem that most couples face is how to prove the terms of any oral contract.

More and more people are living together in committed relationships, but there are complex issues that affect their rights and responsibilities. Look for my soon-to-be-released book on cohabiting in Massachusetts, but if you would like to consult with an attorney about your living-together arrangements contact Andrew Garcia at Phillips Garcia Law.

 
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Posted by on June 13, 2012 in Living Together/Cohabiting

 

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My Stepchildren are Driving Me Crazy! and Other Refrains from a Blended Family


Like many couples out there, I’m part of a blended family. You see, my life isn’t just about law.  I’m living in a committed, long term relationship with my life partner. She has 2 daughters from a previous marriage and I have a daughter. So, we live as a blended family.

Now, despite the interesting title to this blog, her children DO NOT drive me crazy. Promise. I just found it to be a catchy title for this blog and an appropriate way to introduce the topics to be discussed in it.

Living in a blended family is one of the reasons that I’m so interested in focusing on estate planning for couples in second marriages and blended families because I know first hand some of the issues, and stresses, that they face everyday. But, let’s take a break from my regular blogging about legal topics and consider some of those challenges.

If you live, or lived in, a blended family, then you know it has some very unique challenges – particularly when you’re dealing with the other partner’s children. Let’s face it, that makes sense because couples usually bring different parenting styles into the new relationship. There are financial issues such as child support and alimony obligations that can create stress and even resentment in some cases.  Developing a close relationship with the other partner’s children may also be difficult since they are often feeling divided loyalties between the biological parent and the step-parent.

I read a most interesting article from the University of Arkansas Research & Extension service that offered some tips on dealing with these challenges that we blended family parents face. For example, the author suggests to be realistic when trying to form a relationship with the other partner’s children. Some experts estimate that it can take up to seven years for a child to adjust to a step parent, especially if the child feels strong loyalty to the natural parent. So, instead of trying to be a parent to the child, develop a style that is akin to a kindly uncle or aunt – someone who can listen and provide guidance when sought, but not someone who is a primary disciplinarian.

Another suggestion from the U of A, be patient. When families blend, there are naturally many things that need to change and many adjustments to be made. Both partners need to resist that temptation to dive in and fix everything all at once.  Many adults I know are resistant to change. Children are no different. So, with stepchildren, change needs to come in small steps and usually needs to be initiated and introduced by the natural parent. Think long-term goals when it comes to change.

The next suggestion I happen to love a lot: Use steady doses of empathy and understanding. Being empathetic and understanding can be hard, though, especially when you feel resistance from a stepchild or feel that they are being unfair or unreceptive to your attempts at being a family. Yet showing empathy can be one of the most healing things in a blended family relationship. I like to think that when one person tries to meet the other ‘half-way,’ then it’s easier for both to begin to form a rewarding relationship.

There are certainly many more tips for dealing with the challenges that we all face in blended families. It’s not easy, though. I know that first hand. And, I’m not a family therapist, but the advice I might give to other parents trying to raise children in a blended family is to always, always try to remember the reasons you came together as a couple – love for one another. As frustrating as it may be to deal with the other partner’s kids, those kids are products of that person you love.

 

 

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Living Together: Does Massachusetts Recognize Common Law Marriage?


All across the United States people of all ages are making a choice to live together in a long-term, committed relationship. Some simply call it “living together.” Some call it “cohabiting.” Lately the term “domestic partnership” has become more popular particularly in same-sex relationships.

For all intents and purposes, many of these cohabiting couples, whether heterosexual or same-sex, act like a married couple. They share bank accounts. They buy property together. They make major decisions together. They may even be raising children together.

However, technically they are not married because they haven’t had the official marriage ceremony.

There is a common belief that if you live together for 7 years, then you are married by “common law.”  This is simply not accurate. Only a few states recognize “common law marriage.  And, Massachusetts is not one of them. (The closest state to us that does is Rhode Island).

In states that do recognize the doctrine, there are generally 3 elements to determine that a couple is in a common law marriage: 1) that the couple has agreed that they are “married,” 2) that they live together, and 3) that they hold themselves out to the community as being married.  When a couple “holds themselves out” as being married, they are telling the world through their conduct that they are married. So, just “living together” is usually not enough to create a common law marriage; the couple must do something to “tell the world” that they are married.

Even though they haven’t obtained a marriage license, they are considered married in the eyes of that state’s law. So, they must play by all the rules of “regular” married people. If they end the relationship they must get a divorce through a formal divorce proceeding and their property is subject to division. But, they also enjoy the benefits of “regular” married people too. In some states, both parties of the common law marriage have a say when it comes to the other person. If one gets into an accident and is disabled, the other can be at the hospital as a “family member.”

If the couple lives together in a common law marriage state and they don’t want their relationship to become a common law marriage, then they must be clear that their intent is that the relationship not become a common law marriage. It is recommended in that situation that the couple put their intentions in writing so that there is no question about their intent. (i.e., give an example of the type of writing that might be used – i.e., John Smith and Jane Jones hereby agree as follows: that they have been and plan to continue to live together as two free, independent adults and that neither has never intended to enter into any form of marriage, common law or otherwise.”)

If you live in a state like Massachusetts that does not recognize the doctrine of common law marriage, then there is no way to form a common law marriage no matter how long you live with your partner or how you hold yourselves out to the community (i.e., you refer to yourselves as husband and wife to everyone in your community even though you haven’t legally married in a formal ceremony with a license).  If that couple breaks up, they aren’t married by common law, it’s as simple as that.

By whatever term you may use to describe these living arrangements – ‘living together,” “cohabiting,” or “domestic partnership” there are many different legal areas, some rather serious, that impact the couple: child custody, insurance, property ownership, and estate planning just to name a few.  In coming blog posts, I’ll address some of these legal issues.

 
 

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