Updated: Income Tax Filing Status for Same-Sex Married Couples

140107072906_taxesFor Colorado same-sex couples who have been lawfully married in a state recognizing same-sex marriages, a bit of confusion initially existed this year when it came to filing income taxes, at least with regard to their state taxes. However, that confusion has now subsided.

At the federal level, so long as a couple has obtained a valid marriage license, then regardless of whether the state in which they reside recognizes their marriage, for federal tax purposes the couple is married and must file their taxes, accordingly.  At the state level, however, there was some confusion but the Department of Revenue and the Colorado legislature have cleared up the matter.

Under current state regulations, every Colorado taxpayer must file their state income taxes using the same status they use in their federal income tax return.  Thus, Colorado’s amendment banning same-sex marriage created quite a conundrum when it comes to same-sex married couples.  On November 29, 2013, the Colorado Department of Revenue announced via its website that it has promulgated an emergency regulation that will allow same-sex married couples to file their state income tax returns using the same status that is used on their federal returns. The relevant emergency regulation is published here on the Department’s website. It specifically provides, in relevant part, “Any couple that files a joint federal income tax return must also file a joint state income tax return. State income tax provisions that depend upon federal income tax filing status will be administered in accordance with federal income tax filing status.”

Additionally, the state legislature passed and Governor Hickenlooper signed into law SB 14-19 sponsored by Senator Pat Steadman, amending the state’s civil union laws to remove the prohibition against civil union partners filing joint returns.  It also amends the state income tax law in order to make it gender neutral.  It does not permit the State of Colorado to recognize same-sex marriages but instead, allows the state to recognize your federal income tax filing status.

Lawsuit Filed Challenging CO’s Same-Sex Marriage Ban

coloradoStateSeal-300x300A couple in Adams County recently filed a lawsuit in Adams County District Court challenging Colorado’s Amendment 43 of Colorado’s state constitution, which defines marriage as only between a man and a woman and effectively bans same-sex marriage.  In their lawsuit, they contend that Amendment 43 violates the equal protection and due process rights of same-sex residents of Colorado.

Amendment 43 was passed by a vote of the people in November 2006. As a result, there are essentially two avenues to remove the state law ban against same-sex marriage: litigation or the ballot box. Challenging the ban is crucial for Colorado’s same-sex couples; however, many members of the LGBT community and their allies were hoping to challenge the ban through the ballot box rather than litigation for a number of reasons. In all likelihood, this lawsuit will be removed to federal district court (the federal court enjoys jurisdiction should the State of Colorado choose to remove the case to that venue because the challenge to Amendment 43 is partially brought under and based upon federal law). Should this occur, then even if the couple is successful in federal district court, any appeal will be heard by the Tenth Circuit Court of Appeals. The states that make up the Tenth Circuit are not only Colorado but also Oklahoma, New Mexico, Kansas, Utah and Wyoming. Presently, the Tenth Circuit is considered an extremely conservative bench, a view supported by the rulings that Circuit has issued in recent years.  Many believe that a loss at the Circuit court level would be not only devastating to the LGBT community and its allies in their attempt to repeal Amendment 43, it also would not be a beneficial posture in which to appeal the decision to the U.S. Supreme Court.  Litigation of this type can take many years, as we witnessed with the Proposition 8 case out of California. As such, we anticipate the fight for marriage equality in Colorado will continue on both fronts – litigation and the ballot box.

Since early September, One Colorado has been hosting a Pathway to Marriage Tour throughout the State of Colorado.  In doing so, they are engaging community members in discussions regarding their thoughts and ideas on the best way to approach Amendment 43 and winning marriage equality for our state.  The following dates are remaining on their tour – November 6th: Colorado Springs, November 7th: Denver, November 13th: Lakewood, November 14th: Longmont, November 20th: Highlands Ranch, November 21st: Boulder.  To learn more about the Tour and/or to sign up for a meeting in your community, go here.

Parental Rights for Same-Sex Couples

The Colorado Civil Union Act went into effect on May 1, 2013 (with the exception of certain provisions related to insurance).  Briefly addressed below are parental rights and options available to same-sex couples with relation to children, including children that have been in the family and children that are new to the family.

I.  STANDARD ADOPTION:

With the passage of the Civil Unions Act, same-sex couples can now jointly adopt children.  In order to do so, the couple must be parties to a civil union.  The process can be lengthy, and will include a home study and a parenting class.

Of note, one party to a Civil Union can not adopt a child on their own.  A party to a Civil Union is required to jointly adopt with the other party to the Civil Union, unless the parties are legally separated.

II. SECOND-PARENT ADOPTION:

This is a tool that was available to same-sex couples prior to the Civil Union Act, and continues to be available to same-sex couples where appropriate.

Second-parent adoptions encompass a variety of family circumstances in addition to same-sex couples.  For a second-parent adoption the sole legal parent must consent in writing to the adoption and must confirm that the child only has one legal parent.

The second-parent adoption process requires a home study and will also include a background check through three separate agencies.  Additionally, the adopting parent is now being required to also attend a parenting class.

III.  STEP-PARENT ADOPTION:

The step-parent adoption process has been available to opposite-sex couples for quite some time, but one requirement was that the parties be married.  The marriage requirement meant that this process was not available to same-sex couples.  However, with the passage of the Civil Union Act, this process became available to same-sex couples.  This process is generally less expensive and less invasive than the second-parent adoption process.

For a step-parent adoption, a legal parent (natural or adoptive) must be in a marriage or civil union with the potential adoptive parent, that same legal parent must consent to the adoption, and the child must be available for a step-parent adoption.

Available for adoption includes, but is not limited to:

  1. Other biological or adoptive parent is deceased;
  2. Other biological or adoptive parent’s parental rights have been relinquished or terminated;
  3. Other biological or adoptive parent consents to the termination of their rights and the adoption by the step-parent;
  4. Other biological or adoptive parent’s parental rights are being terminated as part of the adoption proceeding, but certain conditions must be met;
  5. The child was conceived and born out of wedlock (this includes when a child is conceived through assisted reproductive services).

Unlike the second-parent adoption process, a home study and parenting class are NOT generally required.  The process does require a background check through three agencies.

IV.  CHILDREN CONCEIVED BY ONE PARTNER:

If the child was conceived prior to the parties entering into a civil union, you will need to use the step-parent or second parent adoption process in order for both parties to have parental rights.

If the child was conceived after the parties entered into a civil union, then that child will be presumed to be the child of both parties to the civil union.  As such, no adoption is legally required in the State of Colorado.

In both situations, the parties are advised to consider obtaining a special Medical Power of Attorney in an effort to ensure the protection of the child and the non-birth parent in case the birth parent is unable or unavailable for medical decisions related to the birth parent or the child.

ADDITIONAL GENERAL ADOPTION INFORMATION

You will be required to file a specific Petition and other attendant legal documents for each adoption.  The Court will then schedule a hearing.  In step-parent adoptions, the hearing will be scheduled as soon as possible.  In other types of adoptions, the hearing will be scheduled for a date after the child has been in the adoptive home for at least 182 days.

Additionally, if the adoptive child is 12 years of age or older, their consent to the adoption will be required.

 

Disclaimer:   This post only offers general information and is not intended to provide legal advice regarding any person’s specific situation and does not create an attorney-client relationship of any kind.  The area of law discussed in this post is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area. 

 

Dissolution of Same-Sex Marriages and Civil Unions From Other States – Can I? Why Should I?

legal gavel on top of divorce papersColorado’s new Civil Union law goes into effect in less than forty-eight hours and there is an almost palpable air of excitement.  Colorado’s LGBT community will finally have at least some legal recognition as well as legal rights, responsibilities and protections that have been denied them in the past, including a method for dissolution.  It isn’t marriage equality, but it is a strong step in the right direction.

One noteworthy aspect of the new Civil Unions law is the dissolution procedures. The new Colorado law provides that the divorce/dissolution procedures that apply to marriages will now equally apply to civil unions.  This is exceedingly relevant to many same-sex couples residing in Colorado who have previously entered into a marriage, civil union or similar legal relationship in other states or countries, such as New York, Massachusetts or Canada.  Just as with heterosexual couples, some of those relationships have not worked out.  However, unlike heterosexual couples, many have been unable to obtain a formal divorce or dissolution because Colorado has not recognized their legal relationship.

In many states and countries that offer same-sex marriage or civil unions, meeting residency requirements in order to obtain a marriage or civil union is easy, often 24 to 48 hours.  By contrast, in order to obtain a divorce or dissolution, at least one of the parties has to meet the more strenuous dissolution residency requirements, often six months to one year. Traditionally, this prevented spouses from forum-shopping for favorable divorce laws but it has created chaos for same-sex couples.  For example, in New York, at least one of the parties to a marriage obtained in New York must be a resident of the state for one year prior to the filing of a divorce action.  See N.Y. Dom. Rel. Law §§ 230, 231.  If both parties already live in a different state, obviously the idea of picking up one’s life, job, possibly children and moving to New York for a year is simply not realistic.  However, if neither party is residing in a state that recognizes their legal relationship, such as Colorado pre-May 1, 2013, then that state also will not generally grant them a divorce or dissolution.  There is no legal process available to them to end their relationship, and no set procedure for dividing their property and/or their debt, nor for deciding issues related to any children they have, including visitation schedules and/or child support. These couples are literally left in perpetual limbo, oftentimes facing complications and obstacles when they subsequently try to purchase a new home or start a new business or maybe even enter into a new relationship because in certain states, they are considered married to someone else even though they cannot obtain a divorce.

Colorado’s Civil Union law provides some relief to Colorado residents who have found themselves in this limbo.  The new law provides that any out-of-state marriage, civil union or substantially similar legal relationship is “deemed” a Colorado civil union.  Thus, same-sex couples who have already obtained a marriage or civil union in other jurisdictions will have the same state rights and responsibilities that married couples enjoy.  This is welcome news for many couples who already obtained legal status elsewhere and will not have to go through another legal procedure in their home state in order to enjoy legal recognition. However, it is also welcome news for those couples who are no longer together but have been unable, for the reasons discussed above, to obtain a formal dissolution.  They can now use Colorado’s dissolution procedures to formally and legally terminate their relationship.

Of course, this new legal recognition of existing legal relationships from other jurisdictions is a double-edged sword. Some couples who were previously married or otherwise legally joined elsewhere have since informally ended their relationship and managed to resolve or work out any financial issues, decisions pertaining to children, etc.  Thus, the fact that their previous marriage or civil union will now be deemed a civil union under Colorado law is not altogether happy news.  However, dissolving that relationship through the dissolution procedures is generally being viewed as a necessary step so that all parties can move forward free of any future liabilities or legal entanglements, and be able to enter into a civil union someday with a new partner.

Additionally, the Colorado legislature was likely aware of the nationwide problems arising for other same-sex couples seeking a dissolution or divorce that do not reside in the state in which they were joined.  The Civil Unions Act specifically includes a provision that allows Colorado courts to retain jurisdiction of proceedings related to a civil union entered into here, even if one or both parties cease to reside in this State.  Under the law, if parties to a civil union entered into in Colorado move to or reside in a state that does not recognize their relationship and/or will not grant a dissolution, they can file for dissolution in Colorado even though neither party resides here.  In 2012, California enacted similar legislation providing that if a couple got married in California during the window in 2008 when same-sex marriage was recognized but lives in a state that will not grant them a divorce, the California court will have jurisdiction to grant them a dissolution.  The divorce case will be filed in the county where the couple got married and the dissolution is supposed to be adjudicated “in accordance with California law.”

As of May 1, 2013, Colorado same-sex couples, and former couples, will have a mechanism to dissolve their legal relationship even if it was formed in another state.  This is a tool that will definitely be beneficial to some Colorado residents.

For more information and to see a map of same-sex dissolution laws by state take a look at this article.

For an in depth look at the same-sex couple divorce dilemma check out this great article in the New York Magazine.

Colorado Civil Unions Presentations – On Video

© jalcaraz - Fotolia.com

© jalcaraz – Fotolia.com

The Colorado Civil Union Act goes into effect (mostly) on May 1, 2013.  In fact, some of the Colorado County Clerks have announced that their offices will be open at 12:01 a.m. on May 1st to begin issuing Civil Union licenses to couples.  Both Denver and Boulder County Clerks have advised that they will be open at 12:01 a.m..

In advance of May 1st, we at Martin Law believe it is important for Colorado citizens to understand more about Civil Unions, i.e. what they are and are not, the process for obtaining a civil union, what rights, protections and responsibilities come with a Civil Union and what do not, etc.  As a result we joined with Out Boulder to present a program on March 27, 2013 titled Colorado Gets Civil-ized, which was a panel presentation from Martin Law attorney Jodi S. Martin and fellow Boulder attorney, Larry Hoyt.

If you missed the program, and would like to learn more about Colorado’s Civil Union Act, you can watch the webcast recording of the program right now.  The video is below.  Additionally, the slides used in the presentation can be viewed here, and the handouts distributed are available here.

If you have a group or business that is interested in coordinating a presentation on the Colorado Civil Union Act or any of its implications for same-sex couples, please feel free to contact Jodi S. Martin for information on scheduling.

Disclaimer:   This blog post and any attachments or links only offer general information and are not intended to provide legal advice regarding any person’s specific situation and do not create an attorney-client relationship of any kind.  The area of law discussed in this blog post and any attachments or links is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area.

Answers to Frequently Asked Questions about the New Colorado Civil Unions Act

© jalcaraz - Fotolia.com

© jalcaraz – Fotolia.com

Colorado’s legislature passed the Colorado Civil Unions Act (SB 2013-11) today, March 12,  2013.  Governor Hickenlooper will be signing the bill on Thursday, March 21, 2013 at the Colorado History Museum at 3 p.m. The law will be effective May 1, 2013.

With the passage of the Colorado Civil Unions Act many questions arise. To help answer some of the frequently asked questions, we put together the attached FAQ Sheet.

Questions answered in the attached FAQ Sheet include:

  • What is a civil union?
  • When can I get a civil union?
  • Who can enter into a civil union?
  • How do I get a civil union?
  • What impact does the Colorado Civil Union Act have on a domestic partnership agreement or civil contract that I previously entered into?
  • What if I have entered into a marriage, civil union, or registered domestic partnership elsewhere, do I have to enter into a civil union in Colorado?
  • Can I change my name after entering into a civil union?
  • How does a civil union impact my parent-child relationship with non-biological children I have with my partner?
  • What rights and responsibilities do I have as a result of my civil union?
  • What rights and responsibilities are withheld under civil unions that are granted under marriage?
  • How do I end a civil union, or obtain a divorce from a marriage to a same-sex spouse obtained in another state?
  • Are there any reasons why parties should not enter into a civil union?
  • Do we still need to do estate planning, such as medical powers of attorney and wills, to protect our rights now that we have civil unions?

To read the Act in its entirety, go here.

We will continue to update the FAQ sheet as the new law progresses.