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'New Rights,' New Questions for Same-Sex Couples

August 25, 2004|Joseph Chianese | Joseph Chianese is a graduate admissions officer with Golden Gate University School of Law.

"I'm not paying your school loans!" That was Pete's reaction to the news that in a few months our domestic partnership is going to smell a lot like a marriage.

"I know," I said. "I ain't so sanguine about it myself." For almost 31 years, if I wanted to buy something or go somewhere or give something to somebody or get as far away from all this as I could, I could. It was nobody's business but ours. It wasn't even our business. It was my business.

That's about to change. A few weeks ago, we each got a letter from Kevin Shelley, the California secretary of state. It was addressed, "Dear Registered Domestic Partner." We read in anxious silence.

California law has changed, it explained, and in January we are going to have "many new rights" such as community property, divorce and mutual responsibility for each other's debts.

"Hey, Kevin," I wondered out loud, "can I really get my hands on Pete's IRA?"

Pete asked what this was all about. "AB 205," I sighed, "the Domestic Partner Rights and Responsibilities Act of 2003." In January, registered domestic partners will have the same rights and responsibilities as spouses.

Pete is no Sandra Day O'Connor -- I'm the one who went to law school -- but he still manages to hit the proverbial nail when he swings. His initial reaction was sound. Can I really stick him with my law school loans?

Two paragraphs later I was in a trance. All the legal issues! When do these "many new rights" begin? In January? When we registered? Or 30 years ago when we moved in together? Can the state really force people to give up half of their property retroactively? Would my claim to Pete's retirement account affect his MediCal eligibility? And what about our tax status?

"Domestic partners," the letter continued, "who do not wish to be subject to these new rights and responsibilities MUST terminate their domestic partnership before January."

Pete read aloud, "If you do not terminate your partnership before January, you will be subject to these new rights, and will only be able to terminate your partnership by filing a court action." His pitch rose at the end like someone surprised by a medical bill.

I thought about that language. The letter used it twice. Are we really subject to rights, like the right of privacy or freedom of expression?

Pete said, "There's sound advice from the government: Split up now to avoid the cost of divorce." I ignored him. I was thinking about conflicts between state and federal law. My paycheck would be ours, but his Social Security check is still his. And what about VA benefits?

OK, I thought, what can this do to us? We already have wills, durable powers of attorney and medical directives. Should we redo all that?

Then the answer hit me: Our new "married" status opened up a legal theory that I might be able to use to clarify everything (and grab Pete's IRA). Quasi-community property! It's a kind of legal legerdemain that turns some property that married people separately acquire in another state into community property, once the couple move to California. Could I now convince a court to apply it to separate property acquired back when Pete and I first got together?

Of course, it should have been community property all along. The fact that California is finally getting around to recognizing our basic rights is good, of course, but half measures and incremental steps only confuse things. The new rules are messing with us. With things we thought were fixed until we got this letter.

So for now, I guess we'll stick together and wait for the government to tell us when our not-yet-equal rights change again. I only hope the next letter answers more questions than it raises.

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