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BRIAN M. DELAURENTIS
Attorney at Law
36 West 44th Street, Suite 610 |
New York, New York 10036 |
tel 212.354.6300 fax 212.954.5081 |
Brian@DeLaurentisLaw.com
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Gay & Lesbian Rights
Gay & Lesbian Rights
[as of December 2008]
As a member of the LGBT community, issues relating to sexual orientation have always been an important part of my practice. One of my core strengths over other attorneys is that I "get it" when we are discussing the legal issue at hand. My own personal life experiences enable me to better empathize with your situation and guide you toward the best course of action.
The world is not going to give the LGBT community equality - equality must be won day in and day out through the assertion of our current rights and advocacy (both political and legal) for advancing toward equality. To succeed, we need strength, integrity, consistency and verve to achieve the paramount goal of equality.
Consequently, in representing fellow LGBT community members with their needs, I endeavor to use the full array of legal rights to achieve your goals. In this way, day in & day out, and client by client, acceptance of legal equality for the entire LGBT community becomes a more commonly accepted reality for all of society.
Marital Rights
Marital Rights - New York
I have had the distinct honor of being the chief author of an amicus brief in support of same sex marriage for the LeGal, the Lesbian, Gay, Bisexual and Transgender Law Association of Greater New York. A copy of the brief is available here.
I am a firm supporter of same sex marriage rights for our community. There are important differences in the law between married and unmarried couples that domestic partnership and other partial rights that do not bridge the gap.
Currently, Governor Patterson has ordered the executive departments of New York State to fully recognize same sex marriages from other jurisdictions such as Massachusetts, Connecticut and Canada. If you were married in these jurisdictions, you are entitled to New York State marital rights. Appellate courts have also ordered municipalities to recognize same sex marriages from other jurisdictions, and trial courts have granted divorces to same sex couples married in other jurisdictions. Out of state same sex marriages are entitled to full recognition here in New York.
Nevertheless, the law remains for the moment that same sex couples cannot marry in New York. The reason is simple - judges who have decided this issue simply cannot emotionally handle the equality concept of same sex couples marrying and legislators want to avoid "controversial" positions. The lack of emotional capacity clouds and short circuits their intellectual and analytical abilities. For those of us who "get it" in the legal community, what is really going on is as clear as day.
Marital Rights - New Jersey
New Jersey, by contrast, permits same sex couples marital rights without the name. The New Jersey Supreme Court, in Lewis v. Harris, unanimously found that barring same sex couples from the benefits of marriage was unconstitutional. The only difference of opinion on the Court was that four justices thought that the same rights could be conveyed through a civil union statute and three justices thought that the term marriage should also be available to same sex couples. However, the Court was clear and united that same sex couples are to have identical rights as married couples regardless of the name for it. Outside of New Jersey, however, the recognition of New Jersey civil unions is unsettled at the moment.
Gay Relationship Building - Buying real estate together or going into business together
Same sex couples who buy real estate together can own the property in one of three ways - as tenants in common, as joint tenants with rights of survivorship, or for married couples, tenancy by the entirety. Tenants in common can own unequal shares and the interest in the property passes through the will while joint tenants with rights of survivorship must own equal shares that pass automatically to the co-owner on the death of the other. Tenancies by the entirety automatically pass to the survivor outside of the will, are protected from creditors and have no set percentage ownership. Different couples rightly use what works best for them under the circumstances. I can advise you on what is best for your situation when we meet as well as discuss the best way to handle the carrying costs of the property such as mortgage, maintenance, property tax and insurance.
Similarly, same sex couples that go into business together need legal counsel. Living and working with your partner is quite a lot of togetherness. Separating the two realms is important and I can help by formalizing the business portion of the relationship so that each partner is fully aware of the respective rights, responsibilities and benefits of working and living together. In these situations, another attorney might also need to be involved to ensure that each partner has independent advice about such an important decision.
Preserving the benefits of a same sex relationship - Estate Planning & Succession
Having wills are absolute musts for same sex couples, unless you are married. Without a will, your surviving partner will be left only with what is in his or her name. Your surviving partner can lose literally everything if you should suddenly die without a will - you, the house, the savings, all of it - if everything is in the name of only one partner. There are hundreds, if not thousands of such cases across this country. Even if you are married, a will is still important because it communicates to your survivors your wishes instead of the law's presumptions.
Burial Rights
New York now permits you to designate who has authority to make your burial or cremation arrangements. You can make this designation in either your will or a burial proxy. I highly recommend same sex couples take advantage of this new provision to avoid any disputes in the deeply emotional time that immediate follows the death of a life partner.
Rent Stabilization/Control Succession Cases
In general, I do not take landlord tenant cases because the economic efficiencies are too difficult. However, I make an exception for "succession" cases where a client who is not on the lease continues to live in a rent controlled or rent stabilized apartment in New York City after the tenant of record who was on the lease leaves, dies or abandons the apartment. I have handled many of these cases with highly successful results, particularly for surviving same sex partners trying to keep their homes after their loved one has passed away.
Ending Long Term Relationships
Sometimes long term relationships end for good, bad and even unknown reasons. In addition to the emotional trauma of ending the relationship and the practicalities of moving on with life, there is also the significant issue of dividing joint assets acquired by the couple during their relationship. Usually, each wants what is fair but that is the problem - fairness to one is not fairness to the other. My extensive experience in this area has taught me that fairness is a range and not a point on a line.
Unquestionably, the best policy is to resolve these asset divisions without going to court and I always strive to do so. However, there are times when you must go to court to obtain a fair division because one party is simply being unreasonable.
Currently, the law's view on the dissolution of unmarried same sex relationships is similar to what divorce was in the before the 1980's when "equitable distribution" became the paramount divorce guideline. Same sex couple dissolutions (aka divorce) start with analysis of what asset(s) are in whose name and then follow with who paid what during the relationship. Typically, these assets are real estate, bank accounts, stock portfolios, etc. From there, counsel or the court would analyze the relative economic circumstances and needs of each partner are considered in evaluating a particular case but these last factors do not carry the weight that divorcing married couples have to contend with. Hopefully, the analysis produces a fair result but there is no guarantee of that as there is in the equitable distribution context that married couples have when they divorce.
One of the law's other failings in this context is certainty. Because what will happen is not often clear, "rolling the dice" can become a viable option. Results can vary widely and I have learned that once court is required, an aggressive and swift strategy is usually the best position to adopt in the course of the litigation. Finally, unlike married couples, same sex couples often can require that a jury (rather than a judge) make the division decision. This, however, adds more uncertainty and cost to the process.
For married same sex couples, the law essentially leaves the matter up to the judge under the rules of "equitable distribution." Equitable distribution disregards who is the record owner of a particular marital asset and assesses what is the fair thing to do given the length of the marriage, the economic needs of the less fortunate spouse and what each brought to the marriage. In addition, New York judges can divorce you only for cause (at least in name) which can be an additional cost if contested by one spouse.
Usually the most important asset to be divided is real estate, followed by bank, stock and retirement accounts. Quite obviously, you should consult experienced counsel to ensure that your financial security is not unwittingly compromised while you are in an emotionally prone state.
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