Like thousands of other gay couples, Honora Gibbons and Caryn Weiss kept an eye on Albany as lawmakers voted last month on New York’s same-sex marriage bill. They celebrated when the Senate passed the bill.
Though they’ve been engaged for about two years—in anticipation of New York achieving marriage equality for same-sex couples—they will not be one of the couples rushing to marry as soon as licenses can be issued on Sunday. They said they did feel some urgency after attending a legal clinic at The LOFT in White Plains on Wednesday night, in part because they worried that the law would be somehow overturned, by the courts or by voter referendum, as happened in California with Proposition 8.
Their fears on that front were largely allayed by Lisa Ayn Padilla, one of two attorneys who led the legal clinic, titled “Same-Sex Marriage and What You Need to Know.” Because the state’s highest court found, in Martinez v. County of Monroe in 2008, that it was up to the legislature to decide the issue of same-sex marriage, Padilla said she was very confident that same-sex marriage is here to stay in New York.
Gibbons and Weiss, who have been together for about nine years, already have legal ties to one another, including health care proxies and power of attorney, which as Padilla noted during her presentation can help defend against relatives who swoop in and try to prevent a same-sex partner from making decisions or inheriting wealth from their partner.
“The reality,” Gibbons said after the clinic, “is that so many people have at least one sibling who will try to hit the lottery, so to speak.”
Padilla, a Tarrytown-based attorney specializing in estate planning, said at the beginning of her presentation that she is advising her same-sex clients to not get married yet, to first examine their assets, their final wishes, and other issues before tying the knot. For those who do want to get married and already have a registered domestic partnership or other legal ties, she advised that they update wills and other documents, because marriage is considered a major “life event” that bestows greater rights and benefits than other arrangements.
Since New York State, under the Martinez decision, recognizes same-sex marriages performed in other states and countries, those who have married in Canada or one of the five other states that permit same-sex marriage do not need to marry in New York now that they have the option. However, she added, some couples plan to do so as a way to be counted or to celebrate their new status in their home state.
“It’s legally unnecessary,” Padilla said, “but it’s a statement to the community.”
James Hyer, a White Plains-based attorney specializing in matrimonial law, began his presentation similarly to Padilla's, by urging people to use caution before rushing to city hall.
“I want to make sure people engage in defensive driving when it comes to marriage,” Hyer said. He urged people to consider prenuptial agreements, just as he does with heterosexual couples. A good prenup, he said, spells out where the assets will go if a marriage is dissolved, and it can also stipulate how financial burdens will be handled during the marriage. For example, he said, an inheritance is not a marital asset under state law, but many spouses who inherit money from a relative “co-mingle” those funds with marital funds, for example to buy a home, and then if the marriage fails, they want to suddenly “magically un-co-mingle” those funds, he said.
Hyer, who said about 50 percent of his practice is divorces, cited some daunting statistics about divorce, including the well-known statistic that 50 percent of marriages end in divorce. He also noted that the number rises to 67 percent when it’s a second marriage for at least one of the partners, and to 74 percent when it’s a third marriage.
However, he cited a U.S. News and World Report study that found that states and territories that allow gay marriage have a lower divorce rate—about 41 percent—than those that don’t. This may be due to the fact that same-sex couples seeking to marry are older and more affluent than the average heterosexual couple, he added, but he again stressed that financial planning before a marriage makes the marriage more likely to succeed for any couple. To those who find the prospect of talking about a prenup uncomfortable because they don’t know how their partner will react, Hyer said it’s even more important to do it.
Reminding the audience that marriage is a contract, a business relationship, he asked rhetorically “if you can’t talk about money before the marriage, how are you going to talk about it after you’re married?”
David Juhren, executive director of The LOFT, said that prenups and other legal considerations before marriage could keep the same-sex divorce rate lower than the rate among heterosexual couples.
“This is what we fought for,” he said, “and now that we have it, we do need to make sure we do things maybe a little bit differently from the straight community. One of the reasons we wanted to do [the legal clinic] is that though this is a joyous time, we have to take a step back, take a breath, and realize this is an important thing we’re about to enter into.”
Juhren has been in a long-term same-sex relationship for eight years, but he won’t be running out to get married this weekend.
“We’re waiting a bit,” he said, “though it’s definitely going to happen.”