Since last week, this video of the 19-year-old son of a lesbian couple speaking at a congressional meeting on gay marriage has gone viral. As I have written about same-sex marriage and adoption in the past (provide links), I felt it would be appropriate to share this video in this space. As the battle for gay marriage is being fought in courthouses across our country, it is important for all of us to remember a strong sense of family is essential in raising a child – regardless of the sexual orientation of the parents.
Pennsylvania’s name for a Living Will is an Advance Directive for HealthCare. Unfortunately, too many people don’t understand the meaning and reasoning behind the need for a Living Will. Younger adults, in particular, have misconceptions about Living Wills and so choose not to have one prepared. Members of the LGBT community have an even greater need for a Living Will, because their life-partner and other non-family members may be excluded from being able to make the decision or even to be a visitor in the hospital.
Many people believe that a Living Will is simply a legal document that will allow someone to “pull the plug”. In fact, a Living Will protects the ones closest to you from the burden of having to make extremely difficult decisions in the event that you are unable to voice your own opinion. Importantly, without a Living Will, your family and loved ones may be unable to prove that you prefer to be disconnected from life-support rather than being required to spend your life in a persistent vegetative state in the event of a catastrophic injury.
The first thing people need to know is that a Living Will is necessary only in the event you are unable to express your wishes and then only under two very limited situations:
1) If you have been diagnosed as being in a persistent vegetative state
OR
2) If you have been diagnosed with a terminal illness from which there is no reasonable expectation of recovery, such as an inoperable brain tumor.
A Living Will permits the agent you name to carry out your wishes and to decide whether to withhold or to discontinue medical treatment. In all events, there is a provision permitting the administration of drugs to keep you pain free and comfortable.
Also, a Living Will will not be necessary if you have the ability to express your intention. As long as you are able to voice your opinion, you have the right to change your mind about the contents of your Living Will by merely stating so.
A Living Will can also include a provision as to whether you want to be an organ donor and how you want your organs handled . I also suggest that my clients include a provision if they have any special requests with regard to a funeral and/or burial. This, again, can be very important to the LGBT community, because it specifically authorizes the agent, usually the life-partner, to make these decisions over any objection a family member may make.
As always, I ask that you please contact me at 215-346-4296 if you would like to learn more about this subject.
A marriage or civil union lawfully binds two people together. Absent a prenuptial agreement between the parties, the law provides calculations for financial support in the event of a divorce or separation.
Until recently, when unmarried clients came to my office to learn what rights they have under the law in the event of a break-up, my standard answer was that without a marriage license (or a civil union), you are basically entitled to nothing.
However, in a recent case in which I was involved (along with my co-counsel, Jennifer Horn, Esquire) a Philadelphia judge rendered an opinion that provides a mathematical calculation for the payment of future promised support.
The case was complicated and initially required us to prove the existence of a same-sex life partnership. Our case involved two men who had been living together in a loving relationship for approximately 25 years. They invited a friend-in-need to live with them. When my client’s partner died, this friend-in-need claimed that he was my client’s life partner and further claimed that there was an oral contract between them in which my client promised him life-time support.
The judge agreed that my client and his deceased life partner were, in fact, in a life-partnership thereby precluding this third gentlemen from prevailing. However, in her opinion, the judge discussed how unmarried persons, whether straight or gay, could live in “marriage-type” relationships and could make oral promises to support each other for life.
In earlier opinions, the Pennsylvania courts found that unmarried persons could make promises to each other that are enforceable. However, what sets my case apart is that the judge suggested a mathematical formula to be used to calculate the amount of support to which a person is entitled based on life expectancy and what is reasonable support.
Two people can commit to each other and can make promises to love and support each other till death do us part. The law will enforce these promises if there is clear and convincing evidence of the promise which means there needs to be a lot of evidence presented. In our case, we were able to show that the two life-partners cared for each other, purchased a home together, shared bank accounts, named each other as beneficiaries on all financial accounts, named the other as beneficiary under a Will, took care of each other’s elderly parents and otherwise lived as spouses.
As I have mentioned previously, unmarried couples who live together are urged to sign a cohabitation agreement. As always, if you have any questions please call 215-346-4296.
The day an adoption is finalized is almost always a heartwarming occasion. Having handled numerous adoption cases, I have had the pleasure of witnessing the special moment in which a child, sibling, nephew or niece is added to a family. Being able to see the dream of having a child realized is truly one of the great joys of my career.
At times, the adoption process can also be an anxious experience. To make the adoption process run as smoothly as possible, it is important that individuals seeking an adoption are informed about adoption law in their state – and more specifically, their county.
The adoption law in Pennsylvania provides that anyone can adopt. Straight couples, same-sex couples, and single men or women all have the same right to adopt a child. However, adoption procedures differ from county to county. Philadelphia is the preferable county for adoption by samesex couples as Philadelphia treats the lesbian and gay community similarly to the straight community. On the other hand, second parent adoptions in both Montgomery and Bucks counties place extra burdens on the adopting couple. Second parent adopting couples in Montgomery County need to have a one-time homestudy visit in which an agency goes into the home and determines whether the couple meets all necessary requirements of a stable and loving home while Bucks County, requires three visits before permitting a second parent adoption.
The intricacies of adoption law from county to county can be overwhelming many folks going through such a life-altering time. Choosing an adoption lawyer who is compassionate and understanding to your needs and concerns goes a long way during this time. Adoption should be a joyous occasion and a time for celebration. Seeking counsel from an experienced and reliable lawyer will help you reach this celebratory occasion as quickly and smoothly as possible.
As always, if you have any questions, please give us a call at 215-346-4296.
As same-sex couples who reside in Pennsylvania can tell you, our state does not recognize gay marriage. As the number of states that will marry same-sex couples increases, including neighboring New York, this has become less of a problem for partners looking to tie the knot. A weekend trip to New York or any other more progressive state can result in the parties legally joining in marriage. Seeking a divorce, however, is much trickier.
Since Pennsylvania does not recognize gay marriage, gay couples who marry outside of Pennsylvania, cannot seek a divorce in this state. In the state’s eyes, it is impossible to undo something that is not recognized in the first place. So what happens to a gay Pennsylvania couple who, marry in New York, return to Pennsylvania to live and then decide to divorce at some point in the future? Unfortunately, the answer is unsettling. In order to become divorced, one of the parties would need to become a resident of New York State for a period of one year.
A divorce is often a messy and lengthy process. The process becomes even more complicated for gay couples that get married out of state. Unfortunately, the vast majority of couples are not educated about the difficulties associated with same-sex divorces. Hopefully, as more states begin to wise up and allow gay marriages, this will become a non-issue in the future. For the time being, it is important to remain informed and educate yourself on the difficulties that same-sex couples still face in the year 2011.
I invite you to read Karen Hartman of The New York Times’ article on being bound in a gay marriage. It is the fascinating, sometimes humorous, and informative tale of the challenges she faced in attempting to divorce in a state that doesn’t recognize that her marriage ever existed.
As always, if you have any questions, please give us a call at 215-346-4296.
For anyone who has ever been injured in a car accident, you know all too well how physically and mentally unsettling the experience is. Aside from the physical pain, there can be time missed from work, constant trips to the doctor’s office and rehab, and often times a legal settlement involving the other driver. It’s an ordeal that no one ever wants to go through. Too often, Pennsylvania drivers make their situation worse by choosing a limited tort car insurance policy over a full tort policy.
Pennsylvania is considered a “limited tort state.” This means that drivers in need of car insurance have an option:limited tort or full tort. Insurance agents often sell limited tort policies to individuals seeking a reduced premium. Limited tort policies can save the driver up to 15% when compared to the full tort policy. However, drivers looking to save some money on their premium are taking a risk that will become severely problematic in the event of injury in a car accident.
For one, limited tort drivers give up the right to sue for pain and suffering unless you have a serious injury. Insurance carriers are not liberal with the term serious – they do mean serious and substantial injury. Whiplash and broken bones are often not deemed serious enough for lawsuits. There have been cases in which an individual suffered a fractured skull and was not permitted to receive compensation for pain and suffering upon healing.
There are countless Pennsylvania drivers that do not realize that they are forfeiting their right to seek compensation due to their policy. And, there are others – especially those who have never been in a car accident – to which limited tort may seem like a good way to save some money. However, it’s important to view a full tort policy as an investment. The pain from an injury can last for many months, and yet not be serious enough to overcome the limited tort threshold.
I urge all Pennsylvanians to check with their insurance company about which type of coverage they currently have. The time to be informed about your policy is now, not after an accident has occurred.
If you have any questions, please give us a call at 215-346-4296.
Contemporary long-term relationships are not as traditional as generations past. An increasing number of couples are waiting longer to get married, have not been given the right to marry, or have simply made the decision that they want to live together but do not want to get married. This latter group also includes a number of senior citizens who, for financial reasons, choose not to marry. It is hard to fault folks for not rushing to tie to the knot given the high percentage of marriages that end in divorce. Many couples are in agreement that a relationship can be just as healthy when you are happy, live together, but remain unmarried.
However, unmarried couples that are living together should be financially and legally responsible about their relationship – and that means signing a cohabitation agreement. A cohabitation agreement is similar to a prenuptial agreement for unmarried partners. It can be as specific or as general as you want it to be, provided it details what will happen to your assets in the event of a break-up or in the event of death while cohabiting. The cohabitation agreement is especially useful with couples that have a joint bank account or purchase a home together.
Below are several issues that all cohabitation agreements should cover in the event of a separation:
- Outlining the expectations of the relationship both financially or otherwise
- Distribution of wealth in the event of a break-up
- Whether there will be the payment of future support
Often times, individuals are hesitant about having this conversation with their partner. People would rather avoid having a potentially awkward conversation with the person they love regarding a hypothetical break-up. While this is an understandable point-of-view, the responsible thing to do is to have the conversation beforehand and avoid an expensive and messy court battle down the road.
We would love to hear from you. If you have any questions, please give us a call at 215-346-4296.
In an age where checkbooks have given way to online banking and customer service is over the phone, it’s still important to sit down and take care of the important things. You know, things like going to the doctor, diversifying your stock portfolio, and deciding who will act on your behalf as your agent under a Power of Attorney should the need arise.
A Power of Attorney allows you to designate an agent to “stand in your shoes” in the event you are unable to act on your own. There are two types of Powers of Attorney, a limited power or a general power.
1. A limited Power of Attorney is ordinarily used for a specific purpose, such as attending a real estate settlement if you are out of town and unable to attend.
2. A general Power of Attorney allows a person to act on your behalf generally and usually allows for the agent to make decisions regarding financial affairs and medical decisions when you are unable to do so on your own. Most Powers of Attorney contain a provision that allows the Power to continue in effect in the event you become incapacitated. This is known as a Durable Power of Attorney, because it endures beyond your incapacity. The purpose of a Durable Power of Attorney is to provide in advance for the person you choose to take care of you and all of your affairs should you become incapacitated either as the result of an accident or an illness. Without a Durable Power of Attorney, the Court will need to appoint someone to be your guardian and this is an expensive and complicated legal proceeding. Whether it’s a boyfriend, girlfriend, fiancée, domestic partner, family member or just a friend, the person you trust the most does not have any legal rights to act on your behalf without a Power of Attorney.
3. An Advanced Health Care Directive, also known as a Living Will, allows your “agent” to make the ultimate decision for you, i.e., whether to continue or discontinue life sustaining medical care.
A Living Will is ordinarily used in conjunction with the Power of Attorney. The Living Will is valid only under two very limited situations and only if you lack the ability to make the decision on your own. These two situations are if you are in a persistent vegetative state or if you have a terminal illness from which there is no reasonable expectation of recovery.
Sitting down and addressing who should be your power of attorney is widely recommended, and even supported by the New York Times. The Times argues that, although complicated, the pros outweigh the cons.
Preparing a Power of Attorney with the help of a lawyer may be the best decision for you and your significant other. There are on-going court cases where a Power of Attorney proved to be important, particularly for gay couples. A Power of Attorney, will protect you (or your partner) from being discriminated against during long-term care or an urgent medical emergency.
Deciding what Power of Attorney would be best for you and your trusted partner/boyfriend/girlfriend/best friend/family member is important when planning for your future. More information on Powers of Attorney in Pennsylvania can be found here.
The Law Office of Ellen S. Fischer has worked with numerous individuals in planning and preparing these important legal documents. If you have any questions, please give us a call at 215-346-4296.
With the divorce rate being approximately 50 percent in the U.S., the odds are against us before we even say “I do.” This is extremely disheartening, but we want to help those who fit into the above statistic. And we want to do it in the most amicable and cooperativeway possible.
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In addition to being strong court advocates, The Law Office of Ellen S. Fischer practices Collaborative Law. This is a legally recognized process that enables couples that have decided to terminate their marriage or committed relationship, to work with attorneys in a collaborative manner, and to strive to do so without ever having to go to court.
Collaborative Law is a very effective and efficient means for dissolving a relationship for couples that want to re
tain control during the process and are willing to engage in “four way” settlement meetings.
Collaborative Law is a type of alternative dispute resolution. The parties and their attorneys agree to work together in a respectful and honest manner to arrive at “win-win” solutions to their issues. Rather than having a Judge make the decisions, the parties and their attorneys bring creative resolutions to the individual needs of their clients and their family.
In Collaborative Law, both parties agree to the full and complete disclosure of all relevant information. There is no formal discovery process.
What also makes Collaborative Law unique is that the parties and their attorneys sign a binding contract at the start of the process promising not to go to court. Should negotiations break-down, the clients must retain new counsel and discharge the collaborative law attorneys.
We do hope the statistic will decrease, but the reality is divorce rate is high. We want to help you through this difficult situation. If you have any questions, please give us a call at 215-346-4296.
cannot seek a divorce in this state. In the state’s eyes, it is impossible to undo something that is not recognized in the first place. So what happens to a gay Pennsylvania couple who, marry in New York, return to Pennsylvania to live and then decide to divorce at some point in the future? Unfortunately, the answer is unsettling. In order to become divorced, one of the parties would need to become a resident of New York State for a period of one year.
