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Divorce and Family Law Office of Joanne Kleiner

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Jun 24, 2015

Same Sex Divorce Follows Same Sex Marriage

Same – Sex Marriages No Different – Some Work and Some Don’t

In a study conducted by the Williams Institute, through the University of California at Los Angeles, researchers concluded that, while same-sex divorce rates are currently lower than in heterosexual marriages, the rates will probably be comparable within about 10 years.

The study considered about 150,000 same-sex couples–the number that had filed legal documents for either marriage, domestic partnership or same-sex civil unions. Officials say that this represents about 20% of those who acknowledged in census reports that they were living in a same-sex relationship. According to the study, about one percent of those who had filed some type of registration had subsequently sought to legally dissolve the relationship (compared with two percent of heterosexual marriages that annually end in divorce).

Researchers believe, however, that the divorce rate among same-sex couples will continue to rise and will likely equal that of heterosexual marriages within a few years. They argue that the first group of gay marriages were typically among people who had been partners for extended periods of time, so there was already a dynamic of partnership and longevity. Accordingly, most parties to same-sex marriage have been older, more financially stable, and more emotionally mature. However, as same-sex marriage becomes a legally and socially acceptable option, it will naturally involve more and more people with the same problems that lead to heterosexual divorce–immaturity, lack of financial resources, and lack of commitment.

Researchers noted that the numbers may be somewhat skewed, as until recently many states have not had the capacity to distinguish same-sex divorce filings from heterosexual divorce filings. Additionally, judges in some states have been reluctant to consider divorce proceedings in a same-sex case, where the parties were married in a state that allowed gay marriage, but are seeking divorce in a different state. The Missouri Supreme Court only recently ruled that judges there had the authority to consider a divorce petition by a same-sex couple married in Iowa. The state’s ban on gay marriage was ruled unconstitutional in November, 2014, but the matter is still unresolved.

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Let us help you find a workable solution to a marital property dispute. Contact our office online or call us at 215-886-1266 to schedule a confidential consultation. We will help you stay focused on the issues that matter.

Jun 10

Dividing a Family Business in a Divorce

Dividing Family Business Can Be Painful, Difficult

Small family businessAccording to a recent census report, there are almost four million businesses in the United States that are jointly owned by husband and wife. In those states with community property laws, it has been common for courts to hold that the business of either spouse is community property, and must be divided equally. As more and more women are building and running successful businesses, courts are ruling that they must share the proceeds of their success in a divorce.

Legal and financial experts say that, particularly when the parties to a marriage already have their own business, a “business prenuptial agreement” is the best way to avoid potential problems. Many, however, say that business interests should now routinely be addressed in a prenuptial agreement. With a valid prenuptial agreement, a party to divorce need not worry about the loss of value in a business upon divorce.

Without a valid prenup, though, the inclination is almost always to resolve the problem of dividing the business by having one spouse buy out the other spouse. The challenge with that option, though, is how to determine the buyout price. Legal experts recommend that parties have a professional valuation of the business–each party can have his or her own valuation done, or they can agree on a third party business valuation expert. In many instances, once the value of the business is determined (and agreed upon), the parties can complete a buyout without an exchange of cash by allocating other marital assets accordingly. If the other marital assets are insufficient to compensate a party for the buyout, payments may be set up on an installment basis, or (worst-case scenario), the business may have to be sold, with the proceeds divided accordingly.

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Let us help you successfully resolve your family law problems. To schedule an appointment with an experienced Pennsylvania family law attorney, contact our office online or call us at 215-886-1266.

Jun 03

Same-Sex Marriage State-by-State

An Overview of State Laws on Same-Sex Marriage

Hands and rainbowAs of February, 2015, 37 states and the District of Columbia have all either formally legitimized gay marriage or plan to do so. Thus far, federal courts have dealt with the 14th Amendment issues raised by proponents of gay marriage on a state-by-state basis. In January, 2015, however, the U.S. Supreme Court agreed to hear arguments on whether the 14th Amendment requires all states to allow same-sex marriage. A decision is expected this year.

Public opinion on same-sex marriage has shifted dramatically in the last 15 years. In 2000, a poll showed that only 35% of people thought gay marriage should be legal. In 2014, a similar poll found 55% of Americans in favor of gay marriage.

A look at the history of gay marriage in the United States shows an interesting phenomenon—the response to the decision by the Massachusetts Supreme Court in 2003, allowing gay marriage in the state, was reactionary. Before that decision, only two states had constitutional bans on gay marriage. The year following that decision, 14 more states added constitutional bans, and as recently as 2012, nearly 30 states banned same-sex marriage. Currently, 15 states have constitutional amendments defining marriage to be between a man and a woman, but those proscriptions are rapidly falling under 14th Amendment arguments.

Geographically, the remaining constitutional bans are primarily clustered in the southern states—Texas, Louisiana, Arkansas, Kentucky, Tennessee, Mississippi and Georgia still have bans, whereas Florida, the Carolinas, Virginia, West Virginia, Oklahoma and Kansas allow gay marriage. Missouri’s law was invalidated in late 2014 and Alabama’s ban was ruled unconstitutional earlier this year.20. The Dakotas ban the practice, but Nebraska’s constitutional provision was recently struck down. In addition, Michigan and Ohio remain legally opposed to gay marriage.

Contact the Law Office of Joanne E. Kleiner & Associates

Let us help you successfully resolve your family law problems. To schedule an appointment with an experienced Pennsylvania family law attorney, contact our office online or call us at 215-886-1266.

May 26, 2015

Nebraska Ban on Gay Marriage Held Unconstitutional

Federal Court Strikes Down Nebraska Law Banning Gay Marriage

Agreeing with the argument that the state’s constitutional ban on same-sex marriage was a violation of the provisions of the 14th Amendment of the U.S. Constitution, a federal district court in Nebraska struck down the provision, saying it illegally created a classification based on gender. Under well-established constitutional law, because the constitutional amendment was “discriminatory on its face,” it must be subjected to an intermediate level of scrutiny by the court. Such a level of review requires that the state demonstrate that the amendment serve an “important governmental objective.” The court held that it did not.

In the opinion of the court, it was irrelevant whether the discrimination violated the equal protection clause or the due process clause of the 14th Amendment—it amounted to discrimination based on gender. Constitutional experts say that, though this argument has not been the most frequent rationale in striking down same-sex laws and constitutional amendments, it may be the most effective one, and it appears to be gathering support among justices.

Here are the different legal theories that have been successfully used thus far to invalidate gay marriage bans:

  • Banning same-sex marriage is an unconstitutional form of discrimination based on gender (the rationale used in Nebraska and Missouri)
  • Prohibiting same-sex marriage illegally discriminates based on sexual orientation
  • Bans on gay marriage violate a fundamental right to marriage pursuant to the due process clause of the 14th Amendment
  • Laws banning gay marriage have no “rational basis,” the minimal requirement for laws that treat one person differently from another

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May 19, 2015

Oklahoma Plan to Limit Gay Marriage May Backfire

Oklahoma Lawmakers Seek to Limit Gay Marriage—Plan May Fail

In an attempt to restrict same-sex marriage in the state, Oklahoma’s conservative Republican House of Representatives enacted a law requiring that all marriages be performed by either judges, retired judges or licensed members of the clergy. The law defines “clergy” to include a preacher, minister, rabbi or ecclesiastical dignitary. The intent was to remove county clerks from the process, so that persons seeking to enter into same-sex marriage would find it more difficult to have the ceremony performed.

In response, though, gay marriage proponents have found a loophole that makes it likely that it will be easier for people of the same gender to get married—they have applied to become licensed ministers, so that they can perform the ceremonies. Sources say the Oklahoma laws are very vague on what is required to obtain a license to be a minister. Furthermore, constitutional experts say that any attempt by the Oklahoma legislature to narrowly define who may become a minister will likely run afoul of the 1st Amendment freedom of religion, and the prohibition of the establishment of any religion by the government.

Pro-marriage advocates say the law will likely have a more detrimental impact on heterosexual marriage applicants, particularly if the parties are agnostic or atheist. Under the prior law, a person needed no religious affiliation to get married, but could have the ceremony performed by the county clerk. Many fear that it will become very difficult for “non-believers” to find someone who will agree to conduct their ceremony. Calling the legislation “the marriage chaos” bill, Troy Stevenson, executive director of Freedom Oklahoma, a support organization for gay, lesbian, bisexual and transgender people, says the statute violates the constitutional separation of church and state.

Contact Attorney Joanne E. Kleiner

Let us help you protect your Constitutional rights. Contact our office online or call us at 215-886-1266 to schedule a confidential consultation. We will help you stay focused on the issues that matter.