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Terry's Legacy: How To Ensure Your Medical Care Decisions Are Honored

March 2005

By now, most people are aware of the dramatic struggle involving the life – and death – of Terri Schiavo, the young Florida woman who suffered extensive brain damage over 15 years ago when her heart stopped. For over 10 years, Terri???s husband, Michael and her parents have been waging a battle in the courts, in the legislature, and in the press over the question of who has the right to determine Terri???s wishes regarding her medical care.

Terri has been diagnosed as being in a persistent vegetative state, which describes a body functioning entirely in terms of its internal controls. Her body maintains temperature, heartbeat, respiration, and digestion on its own. She demonstrates various forms of spontaneous movement but no behavioral evidence of self-awareness or awareness of her surroundings. Because she is unable to swallow, Terri receives food and water through a stomach tube. With the tube withdrawn, as her husband desires, she will slowly die. If the tube is replaced, as her parents wish, she will most likely remain in this uncertain state for many years.

This past week, the United States Congress passed, and the President signed, a law requiring Terri???s case to be evaluated in federal court. This unprecedented federal intervention into a matter that is normally left to state courts has proved profoundly troubling to a significant majority of Americans, over 70% of whom view this as government intrusion into a matter that should be left to the privacy of the family. On the other hand, those who are advocates for the disabled view this as an important assertion of Terri???s rights. Regardless of your personal feelings about Terri???s situation, it is important to understand the underlying reason this particular case has played out in such a contentious manner.

Like many adults in the U.S., Terri left no written indication of her wishes regarding her medical care. As a result, the various family members are fighting with each other for the right to impose their interpretation of Terri???s wishes. Sadly, Terri???s case would long ago have been resolved had she executed a set of advanced directives ??? specifically, a "living will" and/or a medical proxy designation.

If you do not have any form of advance directive, you are not alone. By some estimates, over 75% of Americans have not executed a living will, medical proxy or financial power of attorney. Without these documents, you are relying on others – your family, your husband or wife – to make important decisions about your health, welfare, and even about your right to live or die. When you rely on others to make these decisions for you, their decision may not be that which you would have made yourself. When there is disagreement by family members, as in Terri???s case, your failure to choose may result in a lengthy, expensive legal battle that destroys family unity.

Most American states have laws regarding advance directives. These laws typically specify what should be included in a living will and medical power of attorney (sometimes called a medical proxy directive). They help enforce the rights of patients to refuse medical treatment. These laws also provide a way for patients to make known their wishes about medical care before they become incapacitated, and to appoint someone who can make medical decisions on the patient's behalf if they are unable to do so.

The acts also provide that, when a patient has not named a particular person as their surrogate, the court will choose an appropriate individual. Normally, the court will choose the patient???s next of kin, with preference being given to the patient???s spouse, if any. Once a surrogate has determined the patient???s wishes, the decision is not rarely subject to judicial review. Had Terri???s case occurred in New Jersey, for example, her husband would have been appointed her guardian, unless he was found to be unqualified. He would be entitled to direct that her feeding tube be withdrawn after obtaining the opinion of two physicians that she was in a persistent vegetative state with no reasonable possibility of recovery. Furthermore, his decision would be final, and no health care facility in New Jersey could refuse to comply, unless clear notice of a contrary policy had been given at the time of Terri???s admission. Thus, Terri???s unfortunate fate would have been finally determined long ago.

For unmarried couples, whether opposite-sex or same-sex, it is even more important to have written directives, since unmarried partners do not have the same legal right to be named as guardian or medical surrogate for each other. Without an adequate directive, courts in New Jersey will most likely give the decision-making authority to the next-of-kin.

In some states, such as Vermont or Massachusetts, same-sex partners will have rights equivalent to an opposite sex spouse, when it comes to being appointed as the medical surrogate for their partner. In New Jersey, registered domestic partners do not have an automatic right unless they have a written directive. The Domestic Partnership Act provides registered partners with the same rights as a married spouse, but only if a written directive is executed. Furthermore, the Domestic Partnership Act did not provide registered partners with a right to be named as guardian. Although a sympathetic judge could make the determination that a domestic partner should be named in preference to a parent or other next-of-kin, domestic partners are legally considered "interested strangers" with less right than more remote family members.

In most other states, however, you and your partner have no automatic right to be named as each other's guardian or medical surrogate, and absent a written directive, you will be relying on a judge's determination that you are best qualified to be so appointed. If Terri's husband, Michael, had to undergo a 12 year battle with her parent's over the right to make her decisions, imagine what you, without the support of any law, would have to go through in the face of a hostile family.

It is possible that the courts or the government could intervene, as they have in the Schiavo case. Therefore, the best and most reliable way for you to ensure that you are the ultimate master of your fate when it comes to medical care is to execute advance directives that comply with the Act, and to communicate the choices you have made in these documents to your friends and loved ones.

Goodbye and Thanks

Much as I have enjoyed the last few years of writing this column, my time here on Apollonetwork must come to an end. As some of you know, the demands on my time have become quite extensive and I simply cannot keep up with everything. To give you an idea, here is what has transpired in the last four months alone.

In January, I joined a firm in Princeton as partner-in-charge of the trusts and estates practice. This has created significant demands on my time, as I build the practice into what I hope will be one of the best practice groups in the Central New Jersey area. I'm particularly pleased that I was able to join as an openly gay partner and encouraged to continue developing my practice in the gay and lesbian community.

If that weren't enough, my partner and I moved to a new home near Trenton, where we are both becoming quite involved with community, political, and social activities, here and in Philadelphia. I completed a book over the last year, "A Legal Guide for New Jersey Domestic Partners" and it will be published by Rutgers University Press in August. As a result, I am busy making corrections, additions, and revisions to that. I am also at work on a treatise on the law of unmarried couples, which I hope will be picked up by one of the big legal publishers.

And if that weren't enough, I am hoping to attend Temple University to work on an advanced law degree in taxation and estate planning.

That doesn't mean, however, that I will not be continuing to write on issues related to gay and lesbian rights. It just means that I'm changing venues.

Over a year ago, I created a website on the New Jersey Domestic Partnership Act, (http://www.njdomesticpartnership.com), which I am updating every few days, and which has become one of the most complete sites dedicated to the rights of same-sex couples in the New Jersey area. Over the next few weeks, I will be adding a "blawging" capability (for those who are not familiar with this term, a "blawg" is a web log devoted to legal topics).

I want to particularly thank Ron and Hector, for giving me the opportunity to write for Apollonetwork and for their hard work. If you have never tried to maintain a website, you have no idea how much work they do for the GLBT community. I hope everyone who reads this website will donate to Apollonetwork to help Ron keep the site going.

I also want to thank the readers who have contributed questions and comments that have helped hone my legal thinking and writing. Bless you all and may you all have healthy and happy lives. Please feel free to visit my site and, once I get the blawg part running, be sure to register if you want to be notified of updates.

The Lawyer
March 2005

Current Article | Previous Articles | Recent Questions | Previous Questions

Recent Questions

First, a reminder. I am generally legally prevented from answering questions privately. There are a few exceptions but, in general, if you mail a question to me, you'll get your answer here and not privately.

August 27, 2004

Q: I met a lawyer in my state who is in his 50's.?? It was a professional relationship. I most likely will not see him again for a while, but I think of him often.?? He is gay and has an older partner.?? I am in my late 60's with a partner of 30 years.?? If I pursue a relationship,on the side with the lawyer.?? Will it be unethical??for the lawyer. (Lawyer - client relationship etc.)

In general, most attorneys would consider it bad form, if not unethical, for an attorney to have an affair with a current client. Once the attorney-client professional relationship has ended, there is generally no barrier to such an involvement. Where an attorney and his or her client have become mutually attracted to each other, they must end the professional relationship before proceeding further with their personal relationship.

That being said, I think you should carefully consider before you act on your feelings, so that you don't embarasses yourself and this attorney, and jeopardize your own long-term relationship as well as his.

July 15, 2004

Q: Thank you for this section, which allows us to ask our questions in clear, open and direct form.

For a couple of years I have been in a loving relationship with a 51 year-old man who lives in Texas, USA. He is divorced (legally) and works for the local government. He has several sons but now only one lives with him in his home. He has asked me to move to Texas and live with him.

I am more than 30 years old, professional with university degree, single, without wife, children, etc. However, I am not an American citizen, I am Venezualan.

My boyfriend told me that he can adopt me since the law in Texas allows the adoption of an adult. In that way, he believes I could legally live with him in the U.S.

I've taken a look at the Texas adoption statutes and have the following questions for you:

First, is it necessary that I stay Texas so that my boyfriend can request my adoption? Do I need to go to the Court with him to legalize the adoption or I can make this be done through the U.S. embassy in my country???

If I am adopted by an adult who is an American citizen, does it mean that I can or should change my last name to his and my citizenship to U.S.?

If the answer to the previous question is no, then what would be my legal status in the U.S.; would I be "resident" or "immigrant" or what would I be? What kind of visa can a foreign adult get who is adopted by an American citizen??? If I am adopted by an adult, can he request the legal immigration to US of his adoptive son? If it's this way, which is the procedure?

If I am a foreign adult adopted by an American adult citizen, can I live, work, open bank acounts, buy, sell, have goods in my name, etc. In other words, if I am adopted by my boyfriend, can I reside legally and have a normal life in USA as a citizen of that country?

If the answer is "no", or if the answer is "in some things yes and in other things not", then I want to know what kind of things I can do and what I cannot do???

I'm not interested in my friend's money or properties, I have my own money and properties.?? If I'm adopted, can I make a document in which I give up all right of inheriting my adoptive father's goods? It means that I love him for him, not for his money and I want his family to understand that.

Lastly, if am adopted by my boyfriend, but cannot legally live in the U.S. because of this, what are my options. Thank you.

A: As I've previously answered a similar question, the short answer is, no, adoption will not help you in this circumstance. Adoption is a matter of state law, and most states allow adult adoptions. Unfortunately, immigration is a matter of federal law and U.S. immigration law only allows a foreigner adopted by an American to acquire U.S. citizenship if he or she is under the age of 18.

I also don't recommend adult adoption as an alternative for gay couples because it cannot be terminated. Once you are adopted, it is for life, and your boyfriend will always be your legal father and you will always be his legal son. But you won't have gained any real advantages, other than inheritance rights. Furthermore, you may really complicate your life, since many state marriage laws would not allow you and your boyfriend to marry if he adopted you.

Now, I don't think Texas is likely to allow same-sex marriage or its alternatives, but let's say you can move legally to Vermont. You and your partner would be legally unable to register in a civil union because you would be legally related as a result of the adoption. If you moved to Massachusetts, you would be similarly unable to marry, whereas if you had not been adopted by him, you might otherwise be eligible to marry.

It may be possible for you to legally relocate to the U.S. After all, you are educated, have some money and property, and may be able to find an American company to sponsor you. At that point, you would have all the legal rights of a legal alien in the U.S. I recommend that you and your partner talk to a good immigration lawyer in Texas who is familiar with gay and lesbian immigration and can look at your specific situation and advise you about your specific questions. Good luck.

July 2, 2004

Q: I know a wonderful young man with the heart the size of the ocean. He struggled his entire life with his sexuality and at the age of 30, he finally gave in to finding someone with whom he could comfortably and discretely spend some time. He met an older gentlemen and quickly fell in love and visited the gentleman several times over the past year. Even though some differences and a long distance relationship made it difficult, he finally won the heart of the older guy and he was invited to live with him.

However, the young man I am speaking of noticed that even after he was asked to move in with the guy, he never deleted his "profiles" as far as meeting other young men. Confused and emotionally distressed, this young man began to inquire about his partner's online antics since he was promised that no one else was being pursued from a sexual standpoint, which was important to him as far as trust is concerned. He travelled down to meet the older man on a "surprise" visit and found him with someone else...not once, but twice.

However, his love for the older guy wouldn't bring him to parting from him. Finally, on a recent visit actually, the young man opened a drawer and found medication the older man was using for genital warts which was prescribed even before they ever decided to meet one another. The young man I am speaking of was assured by the older gentleman from the onset that he was "drug and disease free" and that he had no STD's whatsoever.

This past week, the young man I am speaking of discovered he had contracted genital/perianal warts and this is the only person he has ever had any sexual activity with EVER! Still, he couldn't bring himself to part from the older guy because even though he has been mentally and emotionally scarred by the events and lies he has been told, he still loves him (yeah, I would have him hit the trail too...but remember, this is the first person he has ever loved).

When he has tried repeatedly to talk with the older gentleman, he gets nothing but denials and crude remarks and has even threatened the young man with legal action if he didn't respect his right to privacy. The young man that I think so highly of has been tormented by the lies, the manipulation, and the indecencies of an atrocious individual...and now, to put a cherry on top, he has a sexually transmitted disease from the very first person he ever connected with.

What rights and legal constraints limit or complement his situation? Can he sue the older guy for obvious mental anguish (hell, no one may never want to be with him again because he was LIED TO from the getgo)? Can he at least prevent the older guy from lying to others? Should he do nothing? I feel so sorry for him...he has even sought psychological treatment over this entire scheme of events and came close to attempting suicide on more than one occasion. He has been taken advantage of and he would have made someone a very special friend but now, he may never decide to begin another search (and I can see why in his case). What type of advice could I give him from a legal standpoint? Thanx so much.

A: Well, clearly he should get out of this relationship and quickly before he becomes infected with something much worse than genital warts.

As far as his legal rights, he could bring a suit because he was infected by this man, but it would be a very difficult suit to win.

First, there is the problem of proving that this man actually infected him and not someone else. I have no reason to doubt that this young man has only been with one person sexually, but how can you prove that in a court of law? It may be possible to use a form of DNA testing to prove that the virus he now has is identical to the virus the older man has, but that would be expensive to do.

The man's threats regarding his right to privacy are empty and he is bluffing. If your friend brings suit, the other man could bring counterclaims, but he must prove his case, just as your friend would have to prove his case. He does have a right to protect his privacy, but not to the extent that it prevents your friend from asserting his rights.

There isn't much you can do except be a friend and encourage him to leave this abusive relationship. If he won't listen to you, there is nothing you can do. The decision is his. However, you must also avoid discussing this situation with others in a way that could open you to charges of slander.

Q: First off; we would like to thank you for your kindness of volunteering your valuable time. We wish more doctors and lawyers would be as generous with their time to help other people.

In regards to our inquiry, we are legally married gay couple. I am Canadian and my partner is American. Obviously this is only officially recognized in Canada. We are very happy together and very much in love, the only problem is we both want to live in the US. Since I have no recognized status in the US we had to move back to Canada. My question is: since the US legally recognizes marriages outside of the country when it is two heterosexuals would there be any legal challenge based on the fact that it is discrimination to recognize marriage in a sovereign country between one group of people and not another? I understand that, so far, there are no bases to challenge when it is two Americans married in Canada conversely; the fact that it is an American and Canadian may change the parameters to some degree. Is there any basis to this or is there some other way of finding residency in the US based on our marriage? Many thanks for your time.

A: This is an interesting situation. If you were an opposite-sex couple, you could move to the U.S. based upon your American partner's citizenship, and you could apply for and would most likely be granted, a visa as his legal spouse.

International recognition of marriage comes as a result of treaties and a principal called "comity", which means one country recognizes marriages conducted in another so that the other country will recognize our marriages. The only exception to this is that one country is not required to recognize marriages from another country that would violate its laws.

For example, it is legal in some countries to have multiple wives. However, the U.S. would not recognize a plural marriage because it is illegal here. The same thing happens here. Because you are a same-sex couple, your marriage is unrecognized as a result of the federal Defense of Marriage Act.

However, comity works not just between countries but also between states. Massachusetts agrees to recognize marriages from other countries that would be legal in Massachusetts. Since same-sex marriage is now legal in Massachusetts, you may well be able to get recognition for your marriage if you moved there.

The biggest problem is the immigration problem, since this is a federal law. The U.S. government would refuse to extend immigration rights to you based upon your marriage, even though you would probably be considered married by Massachusetts.

If you are interested in returning to the U.S., you will certainly have a legal fight on your hands. I would urge you to take a look at the information on the Freedom to Marry website, http://www.freedomtomarry.org/ for some excellent resources on this issue. This group and others may want to help you if you decide to move ahead on this.

June 24, 2004

Q: I feel that I am being discriminated against because of my HIV+ status and I would appreciate your thoughts on the matter.

I am a 59-year-old HIV+ male. I became positive the first part of 2001. My HIV status is considered stable and I am not yet on any HIV medications. I have blood work done a couple of times a year and will start on medication when and if the viral load and CD4 count indicate that it is needed.

In September of 2001, being 56 years old, I took an early retirement from my work and decided to pursue a Peace Corps assignment. I had become HIV+ earlier that year, and being concerned about whether I would be able to receive a Peace Corps assignment because of my HIV status, I contacted the medical department of the Peace Corps to clarify this. I was told over the phone, (I have no written record of this.), that while the Peace Corps has never accepted an HIV+ person, (because they don't know what to do about the situation), I should still go ahead and apply.

I submitted my application in November of 2001 and in February of 2002 I was nominated for an assignment to teach Math and Science in Africa. However, the nomination to an assignment means that the medical part of the process is being kicked off. I submitted all of my medical forms in February of 2002 and in June of 2002 I received a letter stating that they were concerned about my HIV status and felt that I could not complete a 27 month assignment without interruption. They said that I should reapply in a year if I was still interested, and at that time, I should submit a letter from my doctor. In July of 2003 I reapplied for an assignment and included a letter from my doctor stating that I was considered stable and that he felt I could complete an assignment without interruptions.

I am writing this on the 14th of June of 2004, so a year has almost passed since I reapplied. All that I have heard from the Peace Corps during that time is an occasional email or phone call from the nurse in charge of my medical application saying that she is sorry that it is taking so long but that they haven't made a decision yet.

I feel that the Peace Corps is just putting me off with the hope that I will go away so they won't have to make a decision. I have talked to the nurse who has corresponded with me and I have told her about my feelings on the matter. She says that she doesn't know anything and can't advise me as to what to do.

Things have changed in my life since I originally applied for a Peace Corps assignment in 2001 to the point that I am not sure that I would now accept an assignment if it were offered to me. But, depending on the assignment, accepting it is still a possibility and I would still like to get a Yes or No answer from the Peace Corps. I also feel that there is discrimination going on here and I am concerned about how many others might have been discriminated against for not only their HIV status, but for who knows what other conditions.

Do you feel that I have grounds for pursuing a discrimination lawsuit against the Peace Corps? If so, what steps should I take to initiate it? I am not in a financial situation where I could cover legal fees myself so I would need to find an organization that would pursue this for me. Any thoughts that you might have on the matter would be greatly appreciated.

A: Yes, I think you are being discriminated against on the basis of your HIV status. However, I'm not sure you have a very good case, since I think the reason for the discrimination is probably rational and therefore allowable discrimination. Your situation closely parallels the facts of two recent cases decided by the U.S. Supreme Court.

First, the Supreme Court has held that asymptomatic HIV infection is a disability protected by the ADA. In the 1998 decision in Bragdon v. Abbott a dentist refused to fill a cavity in a patient with asymptomatic HIV infection. The dentist was found to have violated the ADA and was accordingly fined.

However, in 2002, a unanimous Supreme Court held that it was not a violation of the ADA to refuse to hire someone because the job would endanger their health. In Chevron U.S.A. Inc. v. Echazabal, Chevron refused to hire a man with Hepatitis C for a job at a refinery because they believed the continued exposure to toxic chemicals would endanger his health. The Supreme Court upheld Chevron's hiring decision on the basis that the Equal Employment Opportunity Commission (EEOC) had a rule that it was permissible not to hire someone if the company reasonably believed that the job would worsen or cause a direct threat to person with a disability covered under the ADA. Even though the applicant's own doctors testified that the job would not worsen his health, the Supreme Court felt that it was reasonable for the company to rely upon its own doctors' advice.

Your situation is very similar to both these cases. First of all, you have a disability (asymptomatic HIV) that is covered by the ADA. However, Peace Corps volunteers are typically assigned to remote, third-world locations where they are likely to be exposed to unhealthy conditions, and a multitude of parasites and diseases. Furthermore, the volunteers are unlikely to be close to any place where they can get proper medical attention should they need it. If the Peace Corps reasonably believes these working conditions could worsen or directly threaten your health, it is entitled to refuse your application.

That doesn't mean you shouldn't talk to an advocacy group such as Lambda Legal (http://www.lambdalegal.org). I'm just not sure you would get much in the way of results.

Q:I had a partner in Washington who committed suicide 4 years ago and we jointly owned a condo here in Canada. When he died, he left everything to his prior lover in the US, who settled everything in the US. However, he has not settled up with me, nor has he probated his partner's will here in Canada. Thus, I live here and own half of the condo and the remainder is tied up in probate. At one time, he told me in a letter that he is willing to transfer the other half to me, provided I pay all the legal bills and costs associated with the transfer. I agreed but now he is not corresponding and I'm stuck trying to resolve this. I did check here in Canada with the probate court and they told me to hire a lawyer, which I can't afford. I appreciate your advice.

A: I'm afraid my advice isn't going to be much more useful than that of the probate court. For one thing, I'm not familiar with Canadian law so I can only address your question from an American law perspective. In a nutshell, you're really going to need to spring for a lawyer to settle this mess.

Unfortunately, you've been placed in a situation where, because your lover apparently failed to change his will when he met you, his estate passed subject to his old will. The bad news is that title to the condo is clouded until your lover's will is probated, since his share of the condo remains in probate. The worse news is that, if he probates the will in Canada, you and your lover's ex are now joint owner's of this condo. This is probably not what your lover or you intended. Since your lover's ex doesn't want to cooperate with you, you'll need to take action on your own.

The first thing you need to decide is if you want to keep the condo or whether you will sell it once things are settled. The reason I mention this is because you could probably get a lawyer to agree to take his or her fee out of the proceeds of the sale rather than get all of it up front. If you don't want to sell, you should be able to get a second mortgage based upon your equity in the property in order to cover the attorneys fees and costs.

Second of all, I hope you've kept the letter in which he said he would deed his share of the property to you in exchange for your payment of the fees. This letter may constitute a legal contract of sale of his share to you. You need to show this letter to your attorney.

Your attorney will then need to bring a cause of action that forces the transfer of his share to you according to the terms of this letter. Alternatively, you could go to court to force a partition sale of the condo, so at least you can get your equity out of the condo.

I wish there were a simple way to handle this, but I'm afraid it's been complicated because your lover either didn't update his will after you and he got together, or he failed to consider a way of transfering his share to you in his will. Your situation is an unfortunate illustration of why wills should be reviewed and updated after major life events (such as leaving a lover) or at least every five years. Good luck.

Q: I am living??with my partner of 12 years in the Orlando, FL area.?? I was married for 37 years and when I met my partner, I left my wife - but we never divorced nor were we ever legally separated. If we had divorced, she would not have not??had any kind of health insurance, and I just couldn't leave her in that position.

Over the years, I have sent her (religiously) monthly support. When I left, I deeded the home to her (which she eventually sold), all furniture in the home plus a debt-free car.?? We have a very good relationship (we have 3 grown children??with families of their own).

My question is this:?? If I should die, is she in any way responsible for any debts that I may have at the time of my death??? I have a new truck - in my name only.?? I have a new home in Florida and she readily signed the documents that stated that she was not financially liable for payments on the home should something happen to me.?? I have a will leaving everything to my partner. For various personal reasons, I have excluded my children.

Basically, if something happens, I will have a home with a mortgage and two motor vehicle loans.?? I guess if she is going to be liable for anything upon my death, I will have to file for divorce.?? This would devastate her since she has many medical problems and she is covered with my military (Tricare for life) insurance.?? She will also receive a VA annuity from my 37 years of federal service. The insurance, with Medicare, more than covers about every medical expense she encounters.?? A response would be greatly appreciated.

A: In general, when you die, your estate will be responsible for any debts held in your name only. However, this will reduce the size of the estate you leave to your partner and if there isn't sufficient cash to cover these debts plus any estate taxes owed, some or all of your other assets may need to be liquidated (sold) to settle the estate.

One thing you could do is take out some life insurance policies with the proceeds going into a trust out of which the trustee would pay off any outstanding debts as well as any taxes. The remaining funds could then be distributed per your will to your partner, your wife, or anyone you want them to go to. You can set up the trust as a non-funded trust that gets funded as the beneficiary when you die.

By not divorcing your wife, you run a risk that your wife and/or children could have the will invalidated, leaving your partner with little or nothing. You should also not rely on your will to leave your house, motor vehicles and other major assets to your partner. If you have not done so already, you and your partner should own these as joint owners with rights of survivorship. That way, they will automatically pass to your partner and will not be part of your estate. Be sure you've had a good estate planning lawyer review your will.

April 2, 2004

Q: If I enter the US on a temporary visa, such as a B1 or B2, can I change this to an H1-B visa if I find a job in the US during my trip, or must I go back to my country to get the H1B visa.

A: So long as you are in the US legally and do not overstay your current visa, a potential US employer may sponsor you for an H1B visa without your having to leave the US. I want to emphasize, however, that you cannot overstay your current visa - not even for one day - or you will be legally prevented from reentering the US on another kind of visa. Since 9-11, the US Homeland Security authorities are closely tracking people who enter the US on temporary visas. Thus, if you haven't received an H1B visa in a reasonable amount of time before your visitors visa expires, you must either apply for an extension or leave the country.

March 3, 2004

Q: If I divorce my wife must I pay alimony? I am a married man of 9 years and I have been a closeted gay all of my life. I did the whole bit of playing up the straight guy and denying my homosexuality. I even became a minister to boot! I am wanting out of my marriage. We live in South Carolina, we do not own a home or anything, we have lots of bills, we only have our furniture and the dog and cats. My wife works and is capable of working, is she able to try and get alimony? I am financially strapped as it is. I'm considering filing for bankruptcy. Any advice? Thanks.

A: Many states (including South Carolina) provide for the payment of alimony by one spouse to the other. Although alimony has been traditionally paid by the husband to his ex-wife, most statutes now talk in terms of spouses in an attempt to equalize treatment of the sexes. The ideal is that one spouse should not be impoverished through the loss of the other's income. The reality is that alimony is most often awarded to ex-wives, particularly if they have full custody of any children. Often, one spouse will use alimony as a means of punishing the spouse who initiated a contested divorce.

Where alimony is provided, the divorce statutes typically define the kinds of alimony and the duration it must be paid. For example, the court may require periodic alimony payments or a lump-sum. The alimony may be of the nature of support, it may be rehabilitative (used to help the supported spouse become independent), it may be reimbursement for loss of future income as a result of earlier events in the marriage, or some combination of these forms. Except for lump-sum alimony, there is usually some terminating event, such as remarriage or death. All of these will be fixed in the divorce decree.

When judges make determinations about who must pay alimony, if any, and in what amount, they are supposed to look at the totality of circumstances. The kinds of things they are required to consider are the duration of the marriage, the ages of the parties, the physical and mental health of each spouses, educational backgrounds, employment history and earning potential of each spouse, current and reasonably anticipated future earnings, jointly and separately owned property, custody of any children, tax consequences, and any marital misconduct or fault of either party. If there is an award of periodic alimony, the court may periodically review and revise the award when circumstances warrant it.

I think your first step should be to meet with a divorce attorney in your state, even before you discuss this with your wife. He or she can discuss with you the grounds for divorce as well as the specifics of alimony in your state. For example, some states require you to separate for at least a year. In your case, you may wish to move to another city or state, particularly if you intend to live more openly as a gay man.

You should be completely open with your attorney as to your reasons for wanting out of the marriage. The information you give is confidential and he or she will need to know this to best advise you. Some judges, particularly in places like South Carolina, may not be very sympathetic to a man wanting to leave his wife to live a gay life. A local attorney will know which courts would be more sympathetic. He or she may also advise you to be very cautious during any period of separation, particularly if you anticipate a nasty divorce.

I know this will be a very scary and very exhilarating time in your life. It isn't going to be an easy journey for you but, ultimately, it will be one that will lead to a more fulfilling life for you and for your wife. Good luck.


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