I Said 'I Do' With My Same-Sex Partner -- But Am I Married?
by
Attorney Frederick Hertz
Will same-sex marriages in California, Connecticut, or Massachusetts be recognized?
While same-sex marriage was available in California between June and November 2008, same-sex couples from all over the country came to the Golden State to tie the knot. And of course, California’s gay and lesbian citizens have been marrying in droves as well. All told, more than 18,000 couples married in California in the 141 days that same-sex marriage was available. And then, with the passage of Proposition 8 on November 4, it all came to an end -- the current law is that “only marriage between a man and a woman is valid or recognized in California.”
In the meantime, same-sex weddings began in Connecticut in November 2008, and thousands of gay people have gotten married under Massachusetts law since 2003. For anyone who married in any of these states, there is uncertainty, and almost everyone will be asking at least one of these questions:
- For those married in California: Is our marriage valid at all?
- For Massachusetts and Connecticut residents who married in their home state: Will our marriage be valid if we leave the state?
- For non-residents who married in Massachusetts and Connecticut: Is our out-of-state marriage valid in our home state?
So what are the answers? Unfortunately, none of them are perfectly clear -- both because same-sex marriage is so new, and because most of the answers to these questions will come as a result of litigation, which takes time. (For updates on the law in all 50 states, check Nolo's article Same-Sex Marriage: Developments in the Law.) But there are some legal principles that allow for some educated guesses.
And remember, everyone who has married now has the chance of becoming a test case for the state they live in -- so you may be the first to learn the answers to these questions!
Will These Same-Sex Marriages Be Recognized?
Here’s a “rough guide” to the basics of relationship recognition.
California marriages are in legal limbo, but there is some support for their continued recognition. After Proposition 8 passed, California’s Attorney General -- the state’s leading lawyer -- stated his support for the continuing recognition of the marriages already performed. Lesbian/gay/bisexual/transgender (LGBT) legal groups are advising couples to treat their marital relationships as valid, but also advise couples to register as domestic partners if they haven’t done so already. Domestic partnership brings the same rights and responsibilities as marriage in California and will prevent the loss of important marital rights.
Marriages performed in Massachusetts and Connecticut should be valid in other states, but may not be recognized. So long as you met the legal requirements for marriage when you got married (for example, you were of legal age and not married to someone else), your marriage will remain valid, wherever you live. If you end up living in a same-sex marriage-recognition state (such as Connecticut or Massachusetts ), you will be treated as married for all state law purposes. Even in states that don’t recognize same-sex marriages, your Connecticut or Massachusetts marriage is still a legal marriage, and if anyone asks your marital status, the correct answer is “married.”
However, if you are living in, or move to, one of the majority of states that has a “Defense of Marriage Act” (DOMA) law that provides that only opposite-sex marriages are valid in your state, then most likely your marriage will not be recognized by that state. This means that state and local agencies (such as a taxing authority, public benefits agency, or local housing assistance office) will treat you as a single person. You can tell them you are married, but if they notice that you are both of the same sex, they will probably disregard your marital status.
It’s less clear what private agencies or employers will do in a non-recognition state (a state that has passed a DOMA). Private parties have more freedom to recognize your marriage, so you may find yourself entitled to employment benefits (such as health insurance for your partner) or medical leave benefits based upon your marriage, even though the state refuses to recognize it. That depends on the individual employer or agency, and you may have to advocate for yourself before you get recognition.
The Burdens of Uncertainty
The issue of marriage recognition is being fought in many state arenas. Some courts are treating out-of-state marriages as valid, and some employers (both public and private) are extending benefits to same-sex married couples. There is real uncertainty as to what the courts and the employers really can do, and it will take several years for the issues to be resolved. In the meantime the best approach is to simply tell the truth, and let your employer or agency decide what to do. You will then have to decide whether you want to be a test case if the decision is costly to you or offends your sense of what is fair.
Taxes and Divorce
There are two areas where the uncertainty about your marital status could create serious problems for you: taxes and divorce.
Taxes. On the tax front, your tax return will ask whether you are single or married, and frankly, neither answer is accurate if you are living in a non-recognition state. The safest bet is to pick the marital status that results in the highest amount of taxes owed, as then the agency can’t really complain that any harm came from your assertion of your status. You could also declare yourself as single but disclose on your tax return that you have a valid marriage that is not recognized in your state -- and let the tax authorities contact you if they disagree.
Divorce. For couples breaking up who want to obtain a divorce or dissolution, there are some serious issues. If you married in Massachusetts or Connecticut but you currently live in a non-recognition state, you may have a problem getting your local court to take “jurisdiction” over your case -- meaning the court may say it doesn’t have the power to divorce you because in the state’s eyes, you’re not married. And you can’t just get a divorce in the state where you got married, because those states have residency requirements and at least one of you would have to establish residency there in order to get a court to grant your divorce.
It’s worthwhile to give it a try in your home state. If you go into court with an uncontested divorce -- so that you’re not asking the court to resolve any disputes -- you may find a sympathetic judge who will grant the divorce. If not, you could try for an annulment of your marriage on the grounds that it wasn’t legally valid in your home state. If neither of these strategies work, one of you may need to relocate temporarily to the state in which you got married, in order to qualify for a divorce there.
So What Should I Do?
The bottom line is that your safest course of action if you don’t live in a marriage state is not to get married right now. Tempting as it is to travel to Massachusetts or Connecticut to establish a legal bond, unless you’re adventurous and not at all averse to taking risks, you might want to wait until the legal rules are straightened out.
If you are the adventurous type, at least have a written agreement covering issues of money and property, so that at if your relationship does end, you don’t have disputes over how to divide your assets. You can find such an agreement in A Legal Guide for Lesbian & Gay Couples, by attorneys Denis Clifford, Frederick Hertz, and Emily Doskow (Nolo). And if you’re considering tying the knot out of state, an hour with a local attorney who understands LGBT legal issues would be a great investment. One good place to find an LGBT lawyer is Nolo's Lawyer Directory (search under family law).
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