I’m getting married to a man. Not married in the traditional sense; that’s illegal in Florida. But in practical terms, and in the eyes of the law, my union will be almost exactly the same as that between a man and a woman. And there’s nothing supporters of a state constitutional amendment to define marriage as only between a man and woman can do about it. Even if the amendment passed, it would in no way prevent me, or anyone else, from entering into a “gay marriage,” which must really bother the conservatives who want to write discrimination into the Florida constitution.
Oh, well.
My boyfriend Alan and I have been together since January 2001. We share a house downtown. We share a bank account. We have three dogs. We have a life together.
As with most couples, discussions of death – or, more awkwardly, breaking up – are not comfortable. But the fact is, if something were to happen to Alan, I would be in trouble. By law, I could not be by his side in the hospital. If he were to die, I wouldn’t have a place to live because my name isn’t on the deed, even though I help pay for the house. His 84-year-old Southern mother has no idea that I even exist, nor do his siblings, as they are of a generation that might not accept our relationship (he is 10 years my senior and the distant baby of his family). All that we’ve built together would go to them.
If something were to happen to me? Alan couldn’t visit me in the hospital, but he’d still have a place to live. However, his health insurance coverage under my company plan would cease.
We’ve been sitting on the marriage issue for some time now, and only with his recent foray into flight school has it become urgent. This summer we formed a company in Costa Rica to purchase land for our retirement, and within that contract was a clause that in the case of death, the real property would go to the survivor. Now we want the same assurances here.
It’s not very romantic, but many of the benefits afforded heterosexual couples by marriage are legal in nature.
I pop the question in the least romantic way possible. “We need to get married,” I say. “Well, not married, but as close to married as we possibly can in the state of Florida.” He agrees. Violins do not play.
I love him very much.
The fight
It’s popular, and easy, to think of marriage as we know it today as a centuries-old institution seemingly ordained by God himself. Republican presidential candidate Mitt Romney recently went on record supporting a national marriage amendment defining marriage as between a man and a woman with this justification: “I agree with 3,000 years of recorded history. I disagree with the Supreme Judicial Court of Massachusetts,” referring to a ruling in that state banning discrimination against gays.
That may sound compelling, but it’s not historically accurate. Throughout most of history, marriage has had more to do with economics than love. Men and women were paired up by their families to secure wealth and prestige. In ancient Rome, fathers chose their daughters’ husbands and the size of their dowries, in essence transferring control over a woman from one man to another. In 17th-century France, women were accorded lower legal status after marriage because they were perceived as inferior to their husbands.
Even in recent history, marriage was quite different than it is today. It wasn’t until 1998 that South Carolina finally removed laws forbidding marriage between a white and a “negro or mulatto,” even though such laws were ruled unconstitutional by the Supreme Court in 1967. The idea that marriage was an equal partnership between a woman and a man only came about in the last half of the 20th century. It wasn’t until 1981 that the Supreme Court revoked state laws that defined the husband “head and master,” with absolute control over property jointly owned with his wife.
Nonetheless, there are those who want to enshrine the relatively recent concept of marriage in the state constitution, even though it is already codified in state law. In 1997, the state of Florida passed a statute that defines marriage as a union between a woman and a man. Like many other states, the Legislature was prompted by the 1996 federal Defense of Marriage Act. Twenty-seven states have since amended their constitutions to “protect” marriage. (Arizona voted down a proposed amendment.)
The Florida Coalition to Protect Marriage (florida4marriage.org) is currently gathering signatures to get an amendment on the 2008 ballot that would read, “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” If it makes the ballot, it will require a 60 percent majority vote to pass.
They are in for a fight. The bipartisan group Florida Red and Blue has raised $1 million to stop the amendment, and the Fairness for All Families Coalition – which includes among its members diverse groups like the NAACP and the Florida Alliance for Retired Americans – is also raising money to shut down what they see as a blatant civil rights infraction. At a recent Fairness for All Families fundraiser in Winter Park, Planned Parenthood of Greater Orlando president and CEO Sue Idtensohn commented, “The constitution should only be amended to improve the rights of people.”
Fairness for All Families campaign manager Damien Filer concurs.
“There really isn’t a more dramatic, significant way to affect public policy than to amend the state constitution,” he says. “Particularly when it already exists in statute. To put something that the only stated purpose is to blatantly discriminate against a portion of the population … in the constitution is fundamentally wrong.”
As of last month, amendment supporters reported having 597,702 of the 611,009 signatures necessary to secure a place on the November ballot. Previous literature from the Florida Coalition to Protect Marriage suggested they’d have it sealed up by the end of July.
The paperwork
In Florida there are a few important steps to take when setting up a gay marriage, the most important of which is to draft a legal, binding last will and testament. A will allows you to designate the beneficiaries of your estate (including homestead, other residences, vacation homes, and rental or commercial property), life insurance policies or retirement benefits, stocks or bonds, bank accounts and shares of owned businesses. It also allows you to designate your executor, a trustee or guardian for any children, burial or cremation instructions, and the exact disposition of personal effects.
Your will is your estate planning and may be open to legal challenges – which is why it’s a good idea to mention exclusions – but having it documented and notarized is the best way to keep the matter out of probate.
This is no different from what a straight married couple can do, only they don’t necessarily have to. In a traditional marriage, everything goes to the surviving partner.
Next up is the living will, a document that allows you to make decisions about your health care in the event you are incapacitated. The living will is your instructions regarding withholding life support, food and water, and any other special treatments, like pain medication. More importantly for gay couples, a living will allows you to designate a first and second person to make the most critical life-and-death decisions for you.
Then there’s the health care power of attorney, an important document that names the person who will make your health-care decisions should you be incapacitated or not trusted to decide for yourself. The law in Florida states that only family members have visitation rights, but naming your same-sex partner in a health care power of attorney allows him or her to be in the hospital with you. The health care power of attorney is different from a living will in that should you make the personal decision to be removed from life support, no partner or family member could override it.
A pre-need declaration of guardian designates who will be responsible for your financial decisions in the event of a legal declaration of incompetence; again, without one the power would default to a family member (starting with oldest child and branching out through sanguinity – parents, siblings, grandparents), not a same-sex partner. A durable power of attorney carries those financial rights over to occasions when the subject is absent, incompetent or no longer interested in making such choices for himself. In a traditional marriage, all these powers are automatically transferred to the spouse.
That takes care of dying. But what happens in a breakup, the gay equivalent of a divorce? Depending on the value of the couple’s assets, they can either form a trust (for greater value and expansive portfolios) or a partnership agreement, which is a pre-nup that spells it all out in case of separation.
The main difference between the two is that there are three positions within a trust – a guarantor, a trustee and beneficiaries – and that allows for third-party governance. A partnership is simpler, allowing each partner to make decisions – and take blame – for asset handling. They’re of different legal stripes, with the trust existing at a higher caliber and being much more difficult to alter.
Straight couples can, of course, do the same. If they don’t, distribution of their assets is handled by the court.
And there you have it. Congratulations. You are now gay married.
“In Florida, executing these documents is as much as you can do to simulate some of the rights and responsibilities of marriage,” says Tom Dyer, a local attorney and publisher of the gay newspaper Watermark. Dyer’s been drafting these documents for couples since 1991, a time when he says that he was one of only two openly gay attorneys in town. (The other one specialized in criminal law.)
He charges $585 for the “gay marriage” package, plus $150 an hour to create a partnership or trust. A partnership typically takes one to three hours, while a trust can take five to seven, meaning the total ranges from $735 to $1,635.
“Most people tell me that they’ve been wanting to do this and thinking about doing it for a long time,” he says. “I think often times it has to do with just that they’ve accumulated some assets. Often there’s a trigger. It may have to do with a death in the family, and they see how it works when someone dies and that creates concern for them. You’d be surprised; the death of Anna Nicole Smith, her probate problems really got a lot of people’s attention and got my phone to ring. The Terri Schiavo situation also was kind of a spark plug for people to go, ‘Wow, this is awful, I don’t want this to happen to me.’”
But filling out forms doesn’t convey all the legal advantages enjoyed by straight couples. For one thing, it only costs $88.50 to get a marriage license, and you can get that down to $32.50 by taking a marriage preparation course.
For another thing, the division of assets is all spelled out for straight couples. Unless otherwise documented, money earned during the marriage, debts incurred and assets purchased by either member of the couple are deemed “marital assets and liabilities,” and are divided by a court at the time of divorce. Items purchased before the marriage tend to go to the person named on the title, but if there has been an increase in value – as with a home – then that difference is considered a marital asset. Gifts are considered marital assets. The rules are similar with debt.
Straight couples also benefit from tax law on income and inheritance taxes. And then there’s the legal right that a spouse can be put on an insurance policy, while a domestic partner may not have that luxury.
“Certainly, being placed on your partner’s health insurance is dependent on the company’s policy,” notes Dyer. “Some big ones allow it. Disney allows it, but most don’t.”
Dyer thinks “marriage” isn’t discussed often enough among gay couples because most people don’t want to talk about breaking up.
“Really, when you think about it, it’s a very sort of mature, great way to go about this, and it also really lets partners know if they’re on the same page about things,” he says. “It’s similar to a pre-nup, but I actually think that it strengthens relationships, that it doesn’t lead to breakups. Because nobody’s sitting there worrying in the back of their mind that they could be screwed, that they could be taken advantage of. I mean, particularly, they know right off, if anything happened, this is how it would be. Rather than going to divorce court, you just pull out the agreement and this is what you would do.”
The agreement isn’t ironclad, he adds, but it will hold a lot of sway with a judge if things get that far.
“It’s a contract, so it’s a starting point with the court system. I mean you could always try to talk a judge into overturning something, but that would be difficult. Two adult people entering into an agreement of sound mind that this is what they said they’re going to do, the court’s inclined to enforce it. Judges like that.”
The talk
Alan and I may not be on the same page about things.
“I don’t understand why we have to form a partnership,” he says, a little agitated. He’s fine with the will (save an “Are you going to knock me off?” quip), but the partnership has him worried. “What, are you planning on breaking up with me?”
Online, there are suggested conversation starters about how to enter this difficult territory, all of which I’ve ignored. Instead, I’m clumsily trying to re-create Dyer’s explanation.
“It’s just so that if you should get tired of me, or I should get tired of you, then we could both be assured that the assets that we’ve both put money into would be fairly divided.”
He grunts, stands up, walks into the bedroom and slams the door. Later, he tells me that it was the use of “get tired” that really got to him, and he proceeds to grill me on just what exactly it is that I want. I tell him that I don’t want much, none of his family’s money because they don’t even know me and that doesn’t seem like it would go over well. I just want my car and half of the house.
“You can have the whole house!”
This isn’t going well at all. He accuses me of unwisely mixing the personal with the professional (which is true), throws the application forms down and says, “I’m done.” I eyeball one of his pistols and contemplate a pre-will suicide.
I don’t think this is strengthening our relationship.
An hour later his temper cools down and we make up. Now he says that what’s really bothering him is that he thinks that all of these forms are “boilerplate,” and that he’s not really interested in spending $735 when he knows that he can take a do-it-yourself approach to the whole affair. His father passed away last year and he gained a lot of experience with wills and business partnerships, he says, and asks if I will let him “just take care of it.” What choice do I have?
Unlike traditional marriage, these aren’t forms that are filed with the state or county. They’re kept by a lawyer or notarized and placed in a safe deposit box until they should be needed for reference. We fight about it a little, but I decide to trust him. After all, he is to be my sort-of-husband, right?
On LawDepot.com the whole package of forms that we need – including the partnership – is available for $77 simply by clicking on “wills and power of attorney” and “business and human resources.” We spend three hours plugging our information into the computer. I call up a lawyer friend to schedule a notarization and contact a couple of witnesses, as the printer buzzes with our future together.
We are very much in love.
The big day
Gay marriage still lacks one big aspect, as Dyer notes. “I never equate it to gay marriage, because it’s just not [the same]. Going in to an attorney and doing estate planning just doesn’t have the symbolism, it doesn’t have the resonance, it doesn’t have the gravitas that marriage does.”
Turns out there are ways around that, too. It’s called a commitment ceremony. Pastor John Middleton of the Joy Metropolitan Community Church performs dozens of them yearly.
“At MCC churches, we refer to it as a holy union service, which is a rite of the church that is equivalent in the eyes of the church to matrimony,” he says. “It is a covenant between people witnessed before God, and witnessed before the community of their friends and family, who are called to support that relationship. So we don’t enter into it lightly.”
Couples are put through pre-commitment counseling (“a process of discovery”) that involves homework testing their seriousness about their union. They’re also encouraged to consult an attorney with regard to estate planning. Joy MCC unions are only recognized within the church.
The base facility and personnel fees charged can quickly add up to $1,000 with all of the trimmings (the average heterosexual wedding costs more than $20,000, but that includes extraneous flower, cake and dress fees), but Middleton aims to keep the prices from being prohibitive, saying that in love there is some room for negotiation.
“Scripture tells us that God is love,” he says. “If that is true, wherever love is found, there God abides. So to approach a real commitment, a sacrificial commitment, to another person, in love, is a divine act. Nothing I say or do makes that happen, but it is my privilege to witness and participate in that proclamation of covenant.”
Alan and I will not be having a ceremony. In fact, I don’t know what it is that we are having. We’ve arranged a meeting at the home of two other gay friends, who will serve as witnesses to the signing of our paperwork. (They’re going through the same process, but with Dyer’s counsel.)
Luckily, I passed that paperwork on to a lawyer friend – despite Alan’s DIY wishes – and he’s had his secretary go through and mark everything that we need to sign or initial with little adhesive tabs reading “sign here” or “initial here,” so that he can notarize it all effectively.
The mood is casual, if tense. Alan’s making jokes about offshore bank accounts, the lawyer (in jeans) is making jokes about his straight lawyer friends who no longer have “reproductive sex” and I’m cringing. This isn’t a wedding. This is a back-alley abortion.
“I think Billy’s getting mad at me,” Alan smirks. “I’m gonna get it in the car!”
The lawyer has marked a couple of changes – most notably, clarifying that I have first power of attorney and not joint power of attorney with Alan’s sister – and we’re maniacally sealing our future with signatures and notary stamps.
“My secretary said, ‘Who drafted these papers?’ They look like shit!” the lawyer laughs.
“Do you mean ‘shit’ like ‘not legal’?” I ask.
“No, they just don’t look as good as the ones we’d have drafted.”
After an hour, we’re done. The lawyer’s going to have it all looked over by his secretary and get them back to me.
“What do we do now?” I ask Alan in the car – our car – not at all romantically.
“We put them in a safe deposit box,” he says.
“The one I don’t have a key to, then.”
“I can’t do everything in one day!” he says, frustration lifting his voice.
We are a married couple, aren’t we?
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