I Said 'I Do' With My Same-Sex Partner -- But Am I Married?

Will same-sex marriages valid in one state be recognized in other states?

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Thousands of people have gotten married in one of the 13 states (or D.C.) that now allow same-sex marriage. But because every state's law is different, there is still considerable uncertainty when people move to a new state, or if they marry in a state where they're not residents.

If you already married or intend to marry in any of these states, you may be asking at least one of the following questions:

  • If you married in California between June and November 2008, the first time same-sex marriage was legal: Is the marriage valid?
  • If you're a resident of a state that allows same-sex marriage and got married in your home state: Will the marriage be valid if you move to another state?
  • If you're a nonresident who married in any of the above locations: Is your out-of-state marriage valid in your 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 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, and pave the way for others!

Will These Same-Sex Marriages Be Recognized?

Here's a "rough guide" to the basics of relationship recognition.

California's pre-existing same-sex marriages are valid. Same-sex marriages performed between June and November 2008 are valid, under court rulings and legislation. 

Marriages performed in any other marriage equality state are also valid in California.

Marriages performed in California and any state that currently has marriage equality 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, you'll be treated as married for all state law purposes.

Even in states that don't recognize same-sex marriages, you are still legally married, 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 its own state "Defense of Marriage Act" (DOMA) law or a constitutional amendment 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're married, but if they notice that you are both of the same sex, they'll probably disregard your marital status.

It's less clear what private agencies or employers will do in a nonrecognition state (a state that has passed its own 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. If the decision is costly to you or offends your sense of fairness, you'll then have to decide whether you're willing to go to court and make yourself a test case.

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by: Frederick Hertz

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