Gay and lesbian couples in Arizona can get many of the same rights as straight couples—but the process is expensive

Paper Marriage 

Gay and lesbian couples in Arizona can get many of the same rights as straight couples—but the process is expensive

Straight commitment in Pima County costs only $72—and along with that tacky marriage license, you get a heap o' legal rights.

Most straight couples don't think much about those rights when they're getting married, because, well, love does that to you. You don't think about how when your spouse dies, you'll be financially OK, because you'll get their Social Security or retirement pension. Or that if you two decide to adopt, you both can legally be the child's parents. And you never have to worry about being able to visit your spouse if he or she gets sick and has to spend time in the hospital.

Gay and lesbian love, like straight love, is also crazy fun—but that's where the equality ends.

Many same-sex couples, however, try to gain some parity by taking a trip to an attorney to draw up a list of legal documents. Right now, that "paper marriage" is as close to legal marriage as these couples can get in the great state of Arizona.

The attorney's time and those documents also cost more than a county marriage license—usually around $2,000, depending on what you need.

Even if a same-sex couple isn't sure whether they are serious, Phoenix attorney Kathie Gummere recommends they consider a domestic partnership agreement when they move in together.

"It's something I recommend for straight couples also," says Gummere, who represents gay and lesbian couples throughout the state. "If you're married ... there are rules on how to separate properties. If you're not married, there are no such things. A living-together agreement can function like a premarital agreement."

Gummere says that when couples come into her office, she recommends different packages of documents, depending on the couple: Are they just in the beginning of their relationship? Is it long-term? Do they have, or want to have, children together?

This is what a basic package from Gummere might look like:

• A domestic partnership agreement lays out what property and belongings are shared by the couple, and who gets what if they separate.

• A durable power of attorney is the document that allows your partner to make financial decisions on your behalf if you are unable to make decisions yourself.

• A medical power of attorney is like the durable power of attorney, but addresses specific medical-care issues. Gummere says she also includes a living will that gives each person the authority to pull the plug on life support, depending on each person's desires.

• A mental health care power of attorney is like the medical power of attorney, but is specific to mental-health issues.

• A HIPAA (Health Insurance Portability and Accountability Act) release allows access to each other's health information. For example, if your doctor calls to give you your test results, this release allows the doc or nurse to talk to your partner.

"If you do all those documents, in some ways, you actually have more rights and responsibilities to each other than if you're married," Gummere says.

Gummere is also having all of her clients register with the Arizona Secretary of State's Arizona Advance Directive Registry (www.azsos.gov/adv_dir). Once you register your living will, medical power of attorney and mental health power of attorney with the office, you will get sent a card that helps you prove who is in charge of these decisions. For example, if you need to prove to a hospital staff member that you have the legal right to make health-care decisions for your partner, the hospital or emergency room staff can run the card through the system, and your registered documents will appear.

Gummere says anyone can go to the Secretary of State's Office website to register, even though she's found that most of her clients don't even know the service exists.

"I'm having everyone register," she says.

Even straight, married couples should consider getting a power of attorney, for situations when one person is not able to make decisions. For example, a person may need to sell a house to help pay for medical bills or nursing-home care when his or her spouse is incapacitated—yet can't without a power of attorney or a guardian/conservatorship, Gummere says.

However, there are certain rights and benefits that only married couples get, Gummere says.

"Let's say I live with my mother," Gummere says. "I want her to have my house if something happens to me." There is a beneficiary deed or a will that can make sure that happens—but her mom would not get her pension or Social Security.

"Lots of families are families that are interdependent—grandparents raising their grandchildren, an aunt raising her nephews—that need government benefits, but no matter what, they don't qualify," Gummere says.

Death benefits are often based on traditional marriage, so if a spouse in a same-sex relationship dies, the benefits won't go to the other person. If that couple in Arizona has children, the kids might get the benefits—but only if they are the dead spouse's biological or adopted children.

Children make a "paper marriage" even more complicated. In Arizona, only one person in a same-sex union can be the legal parent in an adoption. If a lesbian couple decides to use donor sperm, the person who gives birth and is the biological parent is usually considered the legal parent.

Gummere recommends that couples draw up a co-parenting agreement, which can help prove that both adults are parents if there is a separation. It's not binding in the courts, but it does serve as evidence of the parental relationships that exist with the children. She also recommends that parents complete a delegation of parental authority, which gives the non-adoptee or non-biological parent the right to make medical decisions for their children.

"We don't have second-parent adoption in Arizona," Gummere says. Florida, Arkansas, Tennessee and Michigan are also holdouts with this arcane adoption law.

"A kid could have had two parents, but instead, the state says no," Gummere says.

When dealing with a sperm donor, if the donor is someone the couple knows, Gummere says that she recommends the parents don't have contact with the donor for at least six months, so they can prove abandonment. Otherwise, it can be very difficult to terminate parental rights in an Arizona court.

Plus, it's expensive, she says.

Tucson attorney Lisa Bibbens, of the Liberty, O'Neill and Bibbens law firm, has primarily worked in family law for the last 16 years. She says the lack of marriage equality in Arizona leads her to always recommend that her clients legally protect themselves and their families.

Even though the city of Tucson has a domestic partnership registry, it has no legal benefit. Couples, she says, should always complete a domestic partnership agreement and other legal documents.

While her office doesn't do wills and estates, she says she always recommends that clients complete a will to determine who gets the estate at the time of death.

"Many couples I see have never thought of preparing wills. Unfortunately, if you can't marry, and you die without a will, your domestic partner is not going to receive any of your estate," Bibbens says.

Child-custody issues can be even more complicated. Bibbens says a recent Arizona Court of Appeals decision provided some idea on how parents' rights between a biological mother and a non-biological mother will be addressed—and it was not good news for non-biological parents.

Egan v. Fridlund-Horne involved two women in a long-term relationship who had raised a child together for seven years. Bibbens assisted Lambda Legal with an amicus brief filed with the Arizona Court of Appeals on behalf of the non-biological mother.

"One of the women was the child's biological mother through donor insemination. When the relationship ended, the women verbally agreed to an alternating-week visitation schedule. The biological mother later unilaterally reduced the non-biological parent's visitation, and the non-bio mom filed for court-ordered parenting time," Bibbens says.

The trial court found that both women were equally involved in raising the child and ordered each mother equal visitation. The biological mother appealed—and the Arizona Court of Appeals vacated the visitation order, finding that the trial court did not give proper weight to the "fit parent presumption," and that the court exceeded its authority in awarding the non-biological parent equal parenting time.

"Non-biological parents in GLBT households face a significant disadvantage with respect to establishing custody or parenting time of a jointly raised child, in the event their relationship terminates, and the parties are unable to reach agreement with respect to these issues," Bibbens says.

"Unfortunately, Arizona law fails to protect the children of these relationships, both with respect to child support and custody and parenting-time issues."

Bibbens recommends the same documents that Gummere recommends for her clients, and says that while the expense of going to an attorney may make some gay and lesbian couples balk, you can't pick up something like a joint parenting agreement at an office-supplies store.

Most of Bibbens' work focuses on domestic-partnership agreements and sperm-donor agreements, and "all of those are generally done at an hourly rate." If it's a simple form, Bibbens says her office will charge a flat fee, depending on the form.

Gummere says a basic package from her office can cost about $1,800.

"First of all, everyone needs documentation, and any (documentation) is better than none," Gummere says. "If you buy a (legal document) package at Office Max, it does not take into consideration the gay and lesbian community. There are things that we put in our documents that are different that you are not going to find."

Retirees Gail Gardiner and Judy Sigler, together more than 20 years, moved to Arizona from Albany, N.Y., two years ago. While the couple never had children, they completed a series of agreements—similar to the basic package recommended by Gummere—with a New York attorney shortly after falling in love.

As they've gotten older, and health issues have come up, both say the documents—particularly the medical power of attorney agreements—have provided peace of mind.

"It's protection," Gardiner says. "A lot of it is emotional, to think you can be separated at a time when you need your partner."

Sigler adds: "It ensures that I can be with her if something happens to her. Of course, I would lie and say I was her sister if I was forced to."

Gardiner says they've talked about that very scenario. During their cross-country drive from New York to Arizona, Gardiner broke her foot in Oklahoma City.

"(The hospital staff) was really reluctant to have (Sigler) come in my room, until I really insisted," Gardiner says. "We left there to get back to Tucson and almost drove straight through."

If the lie didn't work, Sigler would have gone to the car to get the legal paperwork, since the couple carries the documents with them whenever they travel.

"We've even given copies to a few friends just in case," Gardiner says.

When the couple settled in Arizona, they had most of their paperwork redone, even though the only change in their lives was their address. Sigler says they didn't trust that their documents would be accepted in Arizona, since they were drawn up in New York State.

"I wanted to make sure we were covered," Gardiner says in agreement. "We have no blood family here. ... It's important we have access to each other."

They were also worried about Arizona's lack of a progressive perspective when it comes to domestic partners. In New York, when you sign documents to buy a house or make other agreements, you can mark "domestic partner" on the forms. In Arizona, there isn't even an "other" option where it can be written in.

"Legally, here (in Arizona), you are two single women. I tried writing it in once, but was told, 'No, no, that doesn't exist.' Well, we're here to tell you that after 20 years together, it certainly does," Gardiner says.

While the incident in Oklahoma alarmed the couple, they say they've never had an issue with the medical community in Tucson. When they got to Tucson, Gardiner went to the Tucson Orthopedic Institute for her foot.

"They were wonderful with both of us," Sigler says. "(The doctor) included me right from the beginning. We were brand-new here, and didn't have power of attorney in Arizona yet, but they were very good here."

"Even when my general practitioner calls, he asks me how my partner is," Gardiner adds.

A year ago, Gardiner was diagnosed with breast cancer. Again, Gardiner says, she had a great doctor who included Sigler in every conversation regarding treatment, and went out to talk to Sigler right after her surgery.

"Our experience here has been very positive, which surprises me. I don't want to say that, but it really does," Gardiner says.

Sigler says that even if she didn't have the documents to prove her legal status with Gardiner, she would feel sorry for anyone who dared tell her that she couldn't see her partner in the hospital.

"Listen, nobody could get in my way," Sigler says.

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