Amendment One Update
As an update, I have pasted below a blog post from the Greensboro News & Record from a group of Family Law Professors from the various law schools in North Carolina:
As usual, Doug, your comments are thoughtful. But family law professors from every law school in the state – including Campbell – agree with the UNC white paper on the dangers that Amendment One poses to domestic violence protection for unmarried couples. The Campbell white paper ignores a critical distinction between the Ohio amendment and Amendment One. The Ohio Supreme Court eventually concluded that the Ohio amendment did not require denying domestic violence protection to a victim unmarried to her abuser. But the Ohio amendment merely prohibited THE STATE from CREATING a legal status for unmarried relationships. Amendment One is much more far-reaching. Amendment One declares that the only “domestic legal union” that the state shall find “valid” or “recognize” is a marriage. In other words, all other “domestic unions” are “illegal,” or “not lawful.” Surely, lawyers who represent batterers who live with victims to whom they are not married will argue for this interpretation. I certainly hope that ALL the district court judges in the state who hear this argument will reject it, which seems a vain hope indeed. And I hope that when after some district court judges accept the argument, the appellate courts of this state will eventually reject it. But how much domestic violence are we willing to tolerate until that happens – assuming the appellate courts reject the argument? There is no reason to tolerate any. Marriages in North Carolina have been limited to a man and a woman for 150 years. Fifteen years ago, we passed yet another marriage statute, making clear that if same sex couples marry in a state that permits their marriages and then move to North Carolina, North Carolina will not honor their marriages. If Amendment One is defeated, which I fervently hope it will be, nothing changes. Marriages in North Carolina will continue to require the “consent of a man and a woman,” as they have for 150 years. If Amendment One passes, things change: unmarried families – some of whom are prohibited by the state from marrying – are a lot less safe. That’s why family law professors from every law school in the state – including Campbell – have joined this statement:
We are family law professors who teach at every law school in the state of North Carolina. We speak on behalf of ourselves, rather than our institutions. Based on our professional expertise, the language of the proposed North Carolina amendment is vague and untested, and threatens harms to a broad range of North Carolina families. The amendment is phrased more broadly than most similar amendments in other states, and would therefore likely be construed by courts more broadly than in other states. The amendment would certainly ban same-sex marriages, civil unions, and domestic partnerships, and would very likely ban the domestic partnership health insurance benefits that a number of municipalities and counties currently offer to same- and opposite-sex unmarried couples. It also threatens a range of other protections for unmarried partners and their children, including domestic violence protections and child custody law. We are aware that some law professors at Campbell Law School think otherwise. In our view, this disagreement simply underscores the fact that Amendment One is vaguely worded and that it is not possible to know how broadly it will eventually be construed.
April 20, 2012
Jean Cary
Professor of Law
Campbell Law School
Scott Sigman
Associate Professor
Charlotte School of Law
Katharine Bartlett
A. Kenneth Pye Professor of Law
Kathryn Bradley
Professor of the Practice of Law
Director of Legal Ethics
Carolyn McAllaster
Clinical Professor of Law
Director, Duke Legal Project
Duke Law School
Sonya Garza
Assistant Professor
Elon School of Law
Kia H. Vernon
Assistant Professor of Law
North Carolina Central School of Law
Maxine Eichner
Reef C. Ivey II Professor of Law
Holning S. Lau
Associate Professor
UNC School of Law
Jennifer Collins
Professor of Law
Suzanne Reynolds
Executive Associate Dean and Professor of Law
Wake Forest School of Law
Understanding Amendment One in North Carolina
On May 8th, North Carolina voters (that is probably you) will go to the polls (hopefully) to vote on Amendment One. Amendment One would theoretically change the North Carolina Constitution to ban same sex marriage.
The actual wording of the Amendment is as follows:
“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”
The wording is a bit confusing and a little vague legally. That has contributed to great confusion among people I have talked to as to what they would actually be voting for or against.
In an effort to help educate people on the Amendment, I have included below the Executive Summary of an article entitled “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution” (footnotes omitted). You can read the whole article here. This article was written by law professors at the UNC School of Law (my alma mater in the interest of full disclosure).
One thing to understand initially is that North Carolina does not recognize same sex marriage. Same sex couples cannot get married or divorced in North Carolina under current law. Perhaps that is one reason for the confusion.
My hope is that you will feel a little less confused about the Amendment and it’s potential impact before you vote on May 8th (I strongly encourage everyone to vote!). Also, this is by no means the only view of the Amendment. But, it is the most unbiased and academic one that I could find that was not from a political based group.
EXECUTIVE SUMMARY
The proposed Amendment would not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution, as its sponsors seek.
Instead, the proposed language is problematically vague, untested, and threatens to upend years of settled law. In prohibiting state recognition or validation of “domestic legal unions,” the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior statutory law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state. Taken as a whole, the bill’s language is sufficiently vague, and its
scope significantly unclear, that it would enmesh our courts in years of litigation to untangle its appropriate meaning. Moreover the eventual result of judicial interpretation of the Amendment would be uncertain. It could, however, be interpreted to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex.
The Amendment could be construed by courts to:
Prevent the courts from enforcing private agreements between unmarried couples, therefore encouraging the wealthier members of couples to avoid marriage so that they will not be subject to obligations to transfer property;
Interfere with child custody and visitation rights that seek to protect the best interests of children;
Invalidate protections against domestic violence to members of unmarried couples;
Interfere with end-of-life arrangements, such as wills, trusts and medical powers of attorney, executed by unmarried couples;
Invalidate domestic partnership benefits currently offered to same-sex and opposite-sex couples by local municipalities;
Prevent courts from enforcing private employers’ agreements to provide benefits such as health insurance to employees’ domestic partners.
The vague and untested language of the Amendment would therefore cause real harm to a broad range of North Carolina citizens. The proposed Amendment could be interpreted to strip the increasing number of unmarried heterosexual couples of their ability to order their relationships and property through contract, deny legal protection against domestic violence, and cut them off from custody of their children. By the same token, committed same-sex couples in North Carolina, who are already precluded from marrying, would also no longer have access to these minimal protections. Even if courts did not ultimately adopt a broad interpretation of the Amendment’s language, these couples’ rights would be uncertain during the inevitably long period of time that it took for these issues to work their way through the courts. The Amendment’s broad sweep would also interfere with municipalities’ freedom to determine domestic partnership benefits for their own employees. It could also undermine private employers’ efforts to attract top employees to North Carolina by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits. Finally, the breadth of the Amendment’s language and its untested terminology will significantly tax the resources of North Carolina courts, which will be charged with interpreting its scope.
Divorce Insurance, Pre-Nups and Co-habitation Agreements in North Carolina
As this recent New York Times article points out, some people are choosing to begin their marriage with the (potential) end in mind.
Pre-nuptial (a/k/a pre-marital) agreements have been around for a long time. The new trend is that couples that cannot, or do not want to get married are choosing to put their understanding about how their relationship will work and how it will end in writing up front.
In North Carolina, same sex couples cannot be legally married. So, a pre-marital agreement is not an option. Given that the number of same sex couples in North Carolina has risen 68% since 2000, cohabitation agreements may become far more popular.
For heterosexual couples that want to live together but choose not to marry, a pre-marital agreement is likewise useless.
But, both kinds of couples have the option of executing a co-habitation agreement.
This kind of agreement can set forth the understanding of how the relationship will operate. For instance, the terms can state that one partner will stay at home to raise children, while the other is expected to earn the family funds at work. Or, it can state that both parties will work outside of the home. The agreement can state how many children each party expects to have or adopt, how many vacations the couple will take and even whether one of the partners is expected to cook meals (I have actually seen that).
More commonly, these co-habitation agreements pre-arrange how (but not if) the relationship will end. The terms often set forth how assets and debts of the relationship will be handled in the event of a break-up. They can dictate what process the parties will use to determine these issues in the event of the break-up (Collaborative Law, mediation, etc…).
Some see these agreements as cold or anathema to romance. But many couples are comforted to know that they have agreed not to drag each other through a nasty court battle if things don’t work out. And, having a discussion about big important issues and expectations before entering a long-term relationship is a good idea, even if it does not lead to an agreement.
As for divorce insurance, one company (in North Carolina of all places) thinks it’s a great idea.
From my point of view, the best insurance for your marriage is to discuss the big issues before you get married, and then commit to really truly communicating during the relationship. Discussing the terms of a pre-nuptial agreement encourages that conversation far more than simply buying an insurance policy.
Common Law Marriage in North Carolina
My last post discussed the laws relating to unmarried domestic partners, i.e. couples who have lived together for a significant period and acted like they are married.
One of the biggest misconceptions about the law of marriage in North Carolina is that there are “common law wives” or “common law husbands” in this state. North Carolina does not grant common law marriages.
Other states do recognize common law marriages. And, if two people were common law spouses in another state, and then moved to North Carolina, North Carolina may recognize the common law marriage from the other state. But, in or order to get married in North Carolina you have to have a marriage license and a marriage ceremony (in the courthouse or otherwise).
Because North Carolina does not recognize common law marriages, North Carolina couples that have lived together, but have never been married do not receive the same rights accorded to married couples.
These rights are significant. Some of the most important ones are:
– The right to ask the court to equitably divide property at the end of the relationship;
– The right to seek financial spousal support from the other party at the end of the relationship;
– The right to take a share of a spouse’s estate at their death (“elective share” in legalese); and
– The right to receive spousal benefits from certain retirement plans and pensions.
The bottom line is that is that if you have any questions about whether you are legally married in North Carolina, you should contact a North Carolina family law attorney. Otherwise, you risk missing out on important protections if your relationship comes to an end.
Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas. He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.