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Fred Hertz has spent the last 15 years advising same-sex couples about how to protect their legal rights should they decide to call it quits. But these days, he says those years of experience are about as useful as day-old wedding cake. His career, as he explains it, is caught in the cross-hairs of a California law set to take effect in January, when his practice will shift from one focused on contracts between the couples to one focused on matrimonial law. “I’ve learned to say ‘I don’t know’ with sophistication,” said Hertz, a solo practitioner in Oakland, Calif. Hertz’s situation reflects a growing urgency among attorneys across the country who are scrambling to keep up with swiftly evolving laws regarding same-sex unions — and the ramifications of relationship bliss gone bust. In Hertz’s case, he is preparing for the implementation of the California Domestic Partner Rights Act of 2003, which essentially will give marriage benefits to same-sex couples who have registered as domestic partners. And in other areas of the country, lawyers are readying themselves for divorce business from a new demographic. “They’re licking their chops,” said Robert Stephan Cohen of New York-based Cohen Lans. Although Cohen, who has represented the likes of New York City Mayor Michael Bloomberg and former Sony Music Chairman Tommy Mottola, has yet to handle a same-sex divorce, he anticipates the day is coming, and soon. “We dream to handle one of those [cases] because the issues are so unsettled,” he said. Hertz’s predicament involves the California law, which will include registered same-sex couples under the domain of family law. It is designed to allow such couples who decide to split up to have their disputes handled by courts under the state’s divorce laws, which previously applied only to opposite-sex marriages. The law requires registered couples who do not want to be included to provide written notice to the state. For the less-moneyed partner, it is good news, Hertz said, since much family law is designed to level the field for the poorer spouse. But it gets complicated. The statute also applies California’s community property law to the state’s estimated 23,000 registered same-sex couples, Hertz said. In other words, all income, assets, savings and debt acquired by either partner after the couple has registered as domestic partners are presumed equally owned during the duration of the union, regardless of how the assets or debts are titled. A major problem, he asserts, deals with taxation. Since the federal government does not recognize same-sex unions, any court-ordered support or property given by one partner and received by the other will be subject to tax. The burden could be daunting for less-moneyed spouses and strip them of what they are entitled to, he said. It also could create constitutional issues if same-sex partners are taxed under federal law but opposite-sex partners are not. ‘JUST A NIGHTMARE’ Another concern is the fate of couples who executed contracts and opt out of the law. Couples who devised such contracts often used the same attorney — as did the majority of Hertz’s clients — which would disqualify the contracts as prenuptial agreements under California law. For couples to avoid the state’s family law by using a prenuptial agreement, both parties must have separate counsel and must waive their marital rights. “It’s just a nightmare,” Hertz said. But it isn’t only niche practices on the coasts that are expecting big changes. James H. Feldman, head of Chicago-based Jenner & Block’s matrimonial practice, anticipates that so-called same-sex divorces will make their way to middle America. His prediction comes despite a pending bill in the Illinois Legislature that would amend the state’s constitution to limit marriage to opposite-sex couples and would not recognize same-sex unions from other states. “It’s only a matter of time before someone walks into your law office, and the lawyer, at that point, is really in a quandary with how to proceed,” Feldman said. Even if particular jurisdictions do not have laws allowing for some form of same-sex unions, and even if those jurisdictions do not recognize unions created in other jurisdictions, much remains unanswered if, for example, a same-sex couple wed in Massachusetts goes to a lawyer in Oklahoma seeking a divorce. That sequence of events is problematical, since most of the laws are untested. Still more issues arise if the couple has adopted a child. “We just don’t know how the courts are going to respond,” Feldman said. Same-sex union and marriage laws vary greatly among jurisdictions, according to Arthur S. Leonard, professor at New York Law School. Only in Massachusetts can same-sex partners get married in the United States, though Vermont has same-sex civil unions, which basically confer marriage rights to couples. In three Canadian provinces, same-sex couples can marry, as well as in the Netherlands and Belgium. Hungary has a common law form of same-sex marriage. Some states have domestic partnership registries, and many cities allow their public employees in same-sex partnerships to register for benefits received by married couples. Many states have adopted their own version of the Defense of Marriage Act, a 1996 law that denies federal recognition to same-sex marriages, and others have not. And what further complicates the issue is how states will handle the inevitable breakups to come. Leonard asserts that if states are to allow same-sex unions, they need to prepare for their demise as well. “The whole purpose of having a legal system available is substituting a judicial system for combat,” he said. But an alternative does exist. About 30 percent of the work handled by Richard Gordon, president of A Fair Way Mediation in San Diego, is the dissolution of same-sex relationships. He said he creates a “legal fiction” for his clients by operating as if they were married in a community-property state. That way, the assets and debts are fairly apportioned, he said. Yet the parties must agree between themselves to use mediation, and it may be difficult for the poorer partner to convince the moneyed partner to participate. “They’re stuck, unless they can get the other party to agree,” Leonard said.

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