Same-Sex Marriage in Massachusetts

In November 2003, the Massachusetts Supreme Court ruled that the state's ban on same-sex marriage violated the state constitution and that civil marriage licenses must be made available to same-sex couples. The ruling took effect on May 27, 2004, when city and town clerks in Massachusetts began issuing marriage licenses to qualified applicants regardless of sex. In the two-and-a-half years that the law has been in effect, more than 7,300 same-sex couples have married. (Forty-five divorces have also been reported.)

While efforts to turn back time are continuing, as yet the opponents of same-sex marriage have not managed to get a vote on a proposed constitutional amendment to ban it. In late 2006 the Massachusetts Supreme Court declined to order the legislature to take such a vote.

Requirements for a Marriage License

To get a marriage license in Massachusetts, you must be 18 or older, not married to anyone else, not related by blood to your intended spouse, and have taken a blood test showing that you do not have communicable syphilis. In addition, you must be a Masschusetts resident unless you live in a state that would recognize your Massachusetts marriage -- at this point, 40 states have DOMA laws, so that's only a handful. This requirement is based on an old law that same-sex marriage opponents dusted off in order to prevent couples from other states from flocking to Massachusetts to marry. (There is also a residency requirement to divorce in Massachusetts -- see below.) Rhode Island is so far the only state to issue a legal opinion stating that same-sex Rhode Island couples may marry in Massachusetts, because nothing in the state's own law would prohibit same-sex marriage.

Rights and Responsibilities

Once married in Massachusetts, same-sex couples have all the rights and responsibilities granted to all married couples in the state. But the federal government continues to refuse to acknowledge same-sex marriages, so the federal benefits of marriage are still unavailable.

The ramifications of the Massachusetts ruling are enormous, and will continue to affect couples for many years. Undoubtedly, some married couples will move from Massachusetts for work or personal reasons, and attempt to enforce their marriage in their new home state. This raises the constitutional issue of "full faith and credit." The United States Constitution says that marriages in one state must be recognized (given full faith and credit) by all other states. At the same time, the federal DOMA says that same-sex marriages in one state do not have to be recognized in other states. Many states have passed their own DOMAs banning recognition of same-sex marriages from out of state. And a depressing number of states have passed constitutional amendments prohibiting the state from recognizing same-sex relationships of any kind from other states.

Ending a Massachusetts Marriage

Another important issue is how couples married in Massachusetts can end their relationships if they no longer live there. The only way to end a marriage is through divorce, and because some states will not recognize a Massachusetts marriage, it may be difficult to get a court to grant a divorce in another state. And lest you think you can just return to Massachusetts to get a divorce, be aware that Massachusetts, like most states, has a residency requirement for divorce. Before you can even file for divorce there, you must have lived in the state for at least a year. After filing it takes at least six months and probably longer for a divorce to become final.

The divorce question also turns on the issue of recognition, and as noted above, that issue will be litigated over time. There are really no answers to these questions as yet -- but see below for ways that you can keep up to date on what is happening in this quickly changing area of the law.

Don't be a bigamist. If you have a civil union in Vermont or New Jersey, are registered as domestic partners in California, Connecticut, or Maine, or have been married in Canada, check with a lawyer before trying to get married again in Massachusetts -- to the same person or to someone else. If you have a Canadian marriage certificate, you are legally married and any marriage you enter into later will probably be considered invalid. If you have a Vermont or New Jersey civil union or a California or Connecticut domestic partnership, you have a legal status that is equivalent to marriage and you may also be guilty of bigamy if you marry someone else while the other legal relationship is still intact. It's unclear what the legal consequences might be of marrying the same person with whom you have the previous marriage, domestic partnership, or civil union. At best, it won't matter. At worst, you could find yourself in a complicated fight if you and your partner separate and end up in a dispute about which relationship is valid and which state's laws you'll use to end your relationship.

Chapter 3 has information about tax filing status if you are legally married, and also addresses other practical issues about recognition of your marriage. Chapter 5 explains the effect of marriage on your status as parents, if you have kids.

California's Domestic Partnership Law

California's domestic partnership law has evolved from providing some limited rights, such as hospital visitation, when it was first enacted in 2000, to offering a comprehensive scheme that gives domestic partners essentially all of the same rights and responsibilities as spouses under state law. The new law went into effect on January 1, 2005, with some of its provisions having a retroactive effect, as discussed below.

Requirements for Registration

Same-sex partners must register with the California Secretary of State (www.ss.ca.gov) to be eligible for rights and benefits under the domestic partnership laws. Registering with a California city, county, or private employer that also offers domestic partner registration is not enough to get the benefits and obligations provided for in the state law. And a recent court opinion held that registration with a city, coupled with a good faith belief that the registration included all the rights of state-registered domestic partners, does not confer those rights.

The requirements for state registration, which costs $33, are:

• Both partners must be 18 or older and capable of consent (if you are reading and understanding this book, you are capable of consent).
• Neither partner may be married to, or in a registered domestic partnership with, someone else.
• The partners must live together (but it's okay for one or both partners to own another house that they use part time, and you don't have to both own the house you live in). You don't need to live in California in order to register, but most other states won't recognize your domestic partnership, so as a practical matter there's not much point in coming in from out of state to register unless you plan on sticking around.
• The partners must not be related by blood.
• The registration form must be notarized.

In addition, the partners must both be of the same sex, or one partner must be over the age of 62. Opposite-sex couples in which neither partner is 62 or over are not eligible to register as domestic partners. (The 62-or-over exception exists because for many people in that age bracket, marriage can have a negative effect on Social Security and other benefit entitlements. Allowing people in this situation to register as domestic partnerships means they can take advantage of the benefits of marriage without the potential downsides.)

When you register, you must attest that you meet the above requirements. You also have to agree that if your relationship ends, you will use a California court to do the legal paperwork involved in ending your relationship and to decide how your property will be divided if you and your partner can't reach your own agreement. If you move out of state and then break up and your new state won't allow you to dissolve your relationship in its courts, this provision will allow you to use a California court to officially terminate your domestic partnership.

The Domestic Partner Rights and Responsibilities Act went into effect on January 1, 2005. If you registered before that date, all of the new rules apply to you -- you don't need to reregister. And the provisions of the law are retroactive to the date of your registration, a rule which undoubtedly will give rise to litigation as couples break up and argue about who owned how much of what, and when.

Visit the California Secretary of State's website. For more information about domestic partnership, or to download the registration form, go to www.ss.ca.gov.

Rights and Responsibilities of California Registered Domestic Partners

Domestic partnership in California now carries with it a wide range of rights and responsibilities. Here are some of the most important provisions of the new law:

• Domestic partners have community property rights, meaning that unless the partners agree otherwise in writing all income earned or property acquired by either partner during the partnership belongs to both partners equally, regardless of who earned or acquired it. This rule is retroactive to the date of registration, even though you might not have known when you registered that these rights were involved.
• Each domestic partner has an equal right to manage and control community property (the income and property acquired by either spouse during the partnership), and an obligation to deal with the property in ways that will benefit both partners.
• The couple's community property is liable for community debts (those incurred during the partnership), and each partner may be responsible for debts incurred by the other partner during the partnership.
• A child born into a registered domestic partnership will be considered the legal child of both partners. Technically, no adoption proceeding should be necessary -- but legal experts consider it wise to do an adoption to ensure that the second parent's rights are fully protected. Chapter 5 has more about this.
• Registered domestic partners must receive the same employee benefits as spouses, under a new 2007 law that requires even employers with out-of-state home offices to provide the same level of benefits.
• Transfers of real property between domestic partners, whether in the course of the relationship or when the relationship ends, do not result in property tax reassessment.
• Domestic partners have the same privilege as spouses to refuse to testify against each other in court.
• Domestic partners have the same rights as married couples to family student housing, senior citizen housing, and other housing benefits.
• A surviving domestic partner has the right to make anatomical gifts, consent to an autopsy, and make funeral arrangements for a deceased partner.
• Upon separation, an economically dependent partner has the right to seek spousal support from his or her former partner.
• As of the 2007 tax year, registered domestic partners must use the same filing status as married couples. For their 2007 tax returns, most registered domestic partners will use either married filing jointly or married filing separate filing status (applying the same rules applicable to spouses).

Registered domestic partners also continue to have the rights granted under earlier versions of the law, including the rights to:

• sue for the wrongful death of a partner
• make health care decisions for a partner who becomes incapacitated
• inherit just what a spouse would if the partner dies without a will
• use sick leave to care for an ill domestic partner or the child of a domestic partner
• relocate with a partner without losing eligibility for unemployment benefits
• apply for disability benefits on behalf of an injured or incapacitated partner, and
• deduct from taxable income the cost of a domestic partner's health insurance or other benefit for state income tax purposes.

Under a related law, all types of insurers in California -- health, life, disability, automobile, etc. -- must provide identical coverage to domestic partners and heterosexual spouses. So if your employer offers health insurance benefits to spouses of employees, your domestic partner is entitled to those same benefits. The same goes for an auto insurance company that gives lower rates to spouses who jointly own their cars and share the same insurance policy.

Pre- and Post-Partnership Agreements

The legal responsibilities created by the new domestic partner law are not for everyone. Some couples may want to enter into written agreements defining their financial relationship, just as couples planning to marry do when they make prenuptial contracts. These agreements allow couples to set out their specific wishes about how they will share property and income, and how they will divide assets and debts if the relationship ends.

Making a prepartnership agreement isn't as simple as just sitting down and writing down your agreements, though. There are special rules that apply to prenuptial agreements, and the same rules apply to same-sex couples who want to opt out of some or all of the marital laws. For example, each party must disclose all of his or her assets to the other party. And although it's not technically required, it's strongly recommended that each partner have his or her own attorney during the process of preparing a prepartnership agreement.

Also, although you can use a prepartnership agreement to divide property and money, and even define support obligations toward each other, you can't make agreements in advance about child support, and you can't make an agreement that releases either partner from the obligation to pay support for a child to whom he or she is legally related.

You can get a head start on your prepartnership agreement. You and your partner can sit down together and think about what you would want in an agreement, and even do a first draft of the agreement yourselves, before taking it to separate attorneys for review and finalization. Check out two Nolo products that can help you do this: Prenuptial Agreements: How to Write a Fair & Lasting Contract, a book by Katherine E. Stoner and Shae Irving, and Prenups for Partners: Essential Agreements for California Domestic Partners, an eGuide by Katherine E. Stoner. Both the book and the eGuide are available at www.nolo.com, and are intended to be used together. These resources will help you figure out whether you need an agreement, take you through the steps of deciding what you might want in it, and help you figure out how to find and work with lawyers.

If you are already registered but are concerned that you might not want all of the provisions of the new law to apply to you, you can try preparing a post-partnership agreement. However, be particularly careful to find an attorney who is knowledgeable in this area. Post-nuptial agreements are strongly disfavored by courts, and have even stricter rules than prepartnership agreements.

Ending a California Domestic Partnership

The rules for terminating a domestic partnership have changed dramatically. Before January 1, 2005, it took only a one-page form -- signed by only one partner -- to end a domestic partner relationship. Now, almost all registered domestic partners will need to file a formal dissolution proceeding in court, just as heterosexual married couples do. You'll have to exchange financial information and enter into a formal settlement agreement to divide your property and, if you have kids, to set out a plan for co-parenting.

This involves quite a bit of paperwork -- but it doesn't mean you have to go through a knock-down, drag-out divorce. The court will have to approve the termination of your partnership, but you and your partner can still agree on how you want to divide your property and debts, and deal with custody and visitation of your kids. Mediation is a great option for making these decisions together. There's more about mediation, and about what to do when a relationship ends, in Chapter 10.

If you registered in California and you live in another state when you break up, you can still terminate your domestic partnership in California if the courts in your new home state won't recognize your partnership (if they don't recognize its existence, they won't give you a piece of paper saying it's terminated). However, if you have children this issue might be complicated by special laws about custody cases and where they can be heard. You'll probably want to talk to a lawyer if you're registered California domestic partners living in another state.

You'll need more information about dealing with assets and debts at the end of a relationship. Take a look at Nolo's Essential Guide to Divorce, by Emily Doskow, and Divorce & Money, by Violet Woodhouse with Dale Fetherling (Nolo), for detailed information about all aspects of divorce. The California Judicial Council website also has a great deal of information and advice in its self-help section, at www.courtinfo.ca.gov.

The Vermont Civil Union Law

In Vermont, couples -- even couples from other states -- can enter into a "civil union." If they live in Vermont, the civil union will give them many of the legal rights of marriage under state law.

Requirements for a Civil Union

To enter a civil union, both parties must be at least 18 years old, of sound mind, not related, and not already in a marriage or another civil union. A civil union license is required, and costs $23. There is no residency requirement for entering into a civil union. The civil union must be certified by a judge, a justice of the peace, or a clergy member who lives in Vermont (or has a special certification from the Vermont probate court).

Rights and Responsibilities of a Civil Union

Parties to a civil union accept responsibility to support each other just as spouses do, and the rights that come with a civil union are the same as those granted to spouses in a marriage in Vermont. These include:

• use of family laws that cover annulment, divorce, child custody, child support, alimony, domestic violence, adoption, and property division
• the right to sue for wrongful death, loss of consortium, and any other tort (personal injury) or legal claim related to spousal relationships
• medical rights such as hospital visitation, notification, and durable power of attorney (allowing partners to make health care decisions for each other)
• family leave benefits and public assistance benefits
• the right to hold property as tenants by the entirety
• the right to adopt a partner's child under stepparent procedures
• immunity from being compelled to testify against a partner, and the same marital communication privileges as a spouse
• the right to file joint Vermont tax returns, and
• the right to inherit from each other without a will.

Although couples from other states can go to Vermont and enter into a civil union, the rights listed above apply only to couples living in Vermont, and many states will not acknowledge a Vermont union for any purpose, including ending the relationship (see below). However, other states have recognized Vermont civil unions for various purposes. For example, a New York court ruled that one partner in a Vermont civil union could sue in New York for the wrongful death of the other partner, just as spouses are permitted to do. ( Langan v. St. Vincent's Hospital of N.Y., 765 N.Y.S.2d 411 (2003).)

Ending a Vermont Civil Union

To end a civil union, you must go to court, just as if you were married. There is a residency requirement, too: At least one party must have lived in the state for a full year before the date of the final hearing on the dissolution.

Whether other state courts will process the dissolution of a Vermont civil union is an open question. So far, one Connecticut court refused to consider the civil union of two Connecticut residents a contract for purposes of awarding support and dividing property. ( Rosengarten v. Downes, 802 A.2d 170 (2002).) But in West Virginia and Iowa, judges have granted divorces to couples who entered into civil unions in Vermont.

Get more information on civil unions. To read Vermont's official state guide on the civil union law, visit www.sec.state.vt.us and click the link for civil unions and marriage.

The New Jersey Civil Union Law

Since 2004, New Jersey has offered same-sex couples some legal protections through domestic partnership registration. But in 2006, the New Jersey Supreme Court ordered the Legislature to insure that same-sex couples were treated the same as heterosexual couples under New Jersey law. The Legislature did so, enacting a civil union law similar to that in Vermont. The law took effect on February 19, 2007.

Requirements for a New Jersey Civil Union

To enter into a civil union in New Jersey, couples must:

• be of the same sex
• be over 18 years old (or meet requirements for an exception)
• not be married or in another civil union or domestic partnership
• not be closely related to each other, and
• must apply for a license and wait at least 72 hours before entering into the civil union.

You'll pay a fee of $28 for your license. A civil union ceremony may be performed by any person authorized to conduct marriages in New Jersey, including ministers, judges, and other officials. (Clergy members aren't required to perform civil union ceremonies if they don't want to, however.)

There is no residency requirement for entering into a civil union in New Jersey, but there is a residency requirement to get divorced there. So if you go to New Jersey solely for the purpose of entering a civil union, and you later break up, you may be in a pickle -- you may not be able to end your relationship in your home state if it doesn't recognize same-sex relationships, so your only option would be to establish residency in New Jersey and seek a dissolution of your relationship there.

Rights and Responsibilities of a New Jersey Civil Union

Partners in civil unions in New Jersey have all of the same state rights and obligations as married couples under state law, including:

• property rights and inheritance rights
• presumption of legal parentage for both partners as to any child born during the civil union
• rights to seek family leave benefits
• rights relating to health and other insurance benefits, as well as pension benefits
• joint tax filing for state returns
• the right to make emergency medical decisions for a partner and to be present if your partner is in a hospital or other care facility
• rights to bring a wrongful death lawsuit and to receive workers compensation death benefits
• privilege not to testify against a partner in court
• domestic violence protection
• if you separate, the right to ask a court to terminate your civil union and make decisions about division of your property or your parental rights
• liability for a partner's debts
• fiduciary duty toward partner, and
• duty of support.

These are examples of some of the major rights and responsibilities, and there are many more. New Jersey law also forbids both individuals and businesses from discriminating against civil union partners.

Status of Domestic Partnerships in New Jersey

If you were already registered as domestic partners in New Jersey, you can retain that status and the rights and responsibilities that came with it, which are significant but not as extensive as those attached to the new civil union status. For example, domestic partners don't have the right to sue for wrongful death, while civil union partners do. Unlike married couples and those in civil unions, domestic partners will not be responsible for each other's debts (unless, of course, the debt was undertaken jointly). Finally, while the domestic partnership law allows domestic partners to ask for alimony or property sharing when a relationship ends, a judge does not have to rule on these questions -- even though it does require that the relationship be ended formally through the courts. In contrast, civil union partners have the right to an equitable distribution of property through the courts, like married couples.

If you enter into a civil union, your previous domestic partnership is automatically terminated. And as of February 19, 2007, the only couples eligible for domestic partnership registration in New Jersey are those in which both partners are 62 years old or older (they can be of the same sex or opposite sexes).

Ending a New Jersey Civil Union

To end a civil union in New Jersey, partners must use the same procedures as married couples seeking a divorce. This means that technically, a civil union can be terminated for cause, including adultery, desertion, extreme cruelty, drug addiction, or institutionalization or imprisonment. Most commonly, however, termination will be based on the parties having lived separately for 18 months without a prospect of reconciliation.

As in most of the other states that offer domestic partnership or civil unions, couples in New Jersey can enter into prepartnership agreements to modify the terms set out in the law.

For more information about obtaining a civil union license, see the New Jersey Department of Health website at www.state.nj.us/health. Click on the link for "Vital Records."

The Connecticut Civil Union Law

Civil unions in Connecticut became available in October 2005. Like domestic partnership in California and civil unions in Vermont and New Jersey, Connecticut civil unions parallel marriages for purposes of state law.

Requirements for a Connecticut Civil Union

To enter into a civil union in Connecticut, couples must:

• not be married or in another civil union
• be of the same sex
• be at least 18 years old (or be emancipated)
• not be closely related by blood, and
• not be the subject of a guardianship or conservatorship (or else have the consent of the guardian or conservator).

Both parties must go in person to get a license from the registrar of vital statistics in their town, and pay a $30 fee. Anyone who's eligible to perform a marriage in Connecticut may perform a civil union.

Rights and Responsibilities of a Connecticut Civil Union

The civil union law in Connecticut says that partners in civil union have all the same rights and responsibilities as married couples in that state. These include:

• medical leave benefits
• hospital visitation rights and the right to make medical care decisions for a partner; status as "next of kin"
• the right to joint custody and the responsibility of support for children born into the civil union
• the ability to file joint state tax returns
• entitlement to a share of partner's estate -- and the inability to entirely write your partner out of your will unless you signed a prepartnership agreement
• protection against discrimination based on marital status
• responsibility for certain debts of partner
• marital privilege not to testify in court proceedings
• right to sue for wrongful death, and
• exemption from state inheritance tax and state gift tax.

Ending a Connecticut Civil Union

Connecticut divorce law applies to civil unions. Residency requirements apply -- so give serious consideration to entering a Connecticut civil union if you don't live there. If your state won't recognize your civil union and therefore won't let you get divorced, you may have to establish residency in Connecticut in order to end your relationship there.

Relationship Recognition in Hawaii: Reciprocal Beneficiaries

Hawaii was one of the first states to recognize same-sex relationships, but the law that ultimately resulted is something of a compromise. Some provisions of the reciprocal beneficiary law have expired over time, and the benefits that remain do not provide anything like the same rights as those enjoyed by married couples. Four years after the law became effective only about 600 relationships were registered.

Requirements for a Reciprocal Beneficiary Relationship

Any two individuals 18 or older who are not permitted to marry under Hawaii law are eligible to register with the state as reciprocal beneficiaries, as long as they are not already married or in a reciprocal beneficiary relationship with someone else. There is no residency requirement, and the reciprocal beneficiary relationship is not limited to people of the same sex -- in fact, relatives may register as reciprocal beneficiaries if they are not permitted to marry but want the rights and benefits of the relationship.

To form a reciprocal beneficiary relationship, partners must register with the Hawaii Department of Health. There's an $8 registration fee.

Rights and Responsibilities of Reciprocal Beneficiaries

Couples who sign up gain some of the rights and benefits granted by the state to married couples, including hospital visitation rights, the ability to sue for wrongful death, workers' compensation benefits, and property and inheritance rights. Some of the rights that were included in the original law have since been excluded, like health and life insurance eligibility for partners.

Unlike couples in some of the other relationship-recognition states, reciprocal beneficiaries in Hawaii are not granted access to family court, which governs issues like divorce, alimony, and child support for married couples.

Ending a Reciprocal Beneficiary Relationship

Reciprocal beneficiary relationships can be ended by filing a termination form with the Department of Health.

Get more information about reciprocal beneficiaries. For information about how to register as reciprocal beneficiaries, check out the website of Hawaii's Department of Health at www.state.hi.us/doh/records/rbrfaq.htm; click "Vital Records."

Domestic Partnership in Maine

In July 2004, Maine enacted its first domestic partnership law, permitting registration by both same-sex and opposite-sex couples who meet the requirements of the registry.

Requirements for Domestic Partnership in Maine

To register as Maine domestic partners, the following must be true:

• each domestic partner is a competent adult
• the two partners have been living together in Maine for at least 12 months preceding the filing date
• neither partner is married or in a registered domestic partnership with someone else, and
• each partner is, and intends to remain, the only domestic partner of the other.

Registration forms are available online at www.state.me.us, or at municipal offices, the Maine Department of Health and Human Services, or any probate court. Registration costs $35. You must have the form notarized before returning it to the state Office of Vital Records for filing.

Rights and Responsibilities of Maine Domestic Partnership

Registration in Maine does not confer the rights or responsibilities of marriage, but offers some limited rights to partners -- mostly protecting domestic partners when one partner dies or becomes disabled. For example, registered domestic partners in Maine

• have the right to inherit from each other without a will
• are considered next of kin for purposes of determining who has the right to make burial arrangements for a partner
• are authorized to act as legal guardian when a partner is incapacitated, and
• have precedence over other family members if there is a conflict over who is next of kin or has guardianship rights.

None of the other rights of marriage come with domestic partner registration in Maine.

Ending a Domestic Partnership in Maine

Domestic partnerships in Maine are terminated automatically if either party gets married to someone else, or can be terminated by agreement of the partners through a signed, notarized form. If only one partner wants to terminate the partnership, that person must complete a form and file it with the state Office of Vital Records, and must send or deliver a copy to the other partner. The termination is effective 60 days after the other partner receives it.

Hot Off the Presses: Relationships in New Hampshire, Oregon, and Washington

In May 2007, just as this book went to press, three states were in the process of enacting new laws about same-sex relationships. This is a brief outline of the laws; the next edition of the Legal Guide will have more extensive information about the details of the laws after their effective dates.

Civil Unions in New Hampshire

The governor of New Hampshire has promised to sign legislation currently on his desk that would authorize same-sex couples to enter into civil unions entailing a legal status equivalent to marriage in New Hampshire. Parties must be over 18, must not be married or in another civil union, and must be of the same sex and not related to each other. New Hampshire will recognize civil unions, domestic partnerships, and marriages of same-sex couples from other states.

The law takes effect on January 1, 2008.

Domestic Partnership in Oregon

Likewise, the Oregon legislation has passed and is awaiting the Governor's signature, which is expected. Domestic partnership in Oregon carries all of the same rights and responsibilities as marriage in Oregon. Parties must be over 18, must not be married or in another domestic partnership, and must be of the same sex and not related to each other. At least one partner must be a resident of Oregon at the time of registration. An action for dissolution identical to that required for married couples is required in order to terminate a domestic partnership.

The law takes effect on January 1, 2008.

Domestic Partnership in Washington State

Washington state's new domestic partnership law is more limited in scope than the new laws in New Hampshire and Oregon. Registered domestic partners in Washington will have the same rights as married couples in certain areas: visiting health care facilities, providing informed consent for health care, authorization of an autopsy, disposition of remains, organ donation decisions, and title and rights regarding cemetery plots. In addition, registered domestic partners will have the right to inherit from a partner without a will, and to bring a wrongful death action. No other marital rights apply.

To register, partners must be over age 18 and of the same sex, or one partner must be 62 or older. Partners must live together, and neither may be married to someone other than the other partner, nor can they be related.

The law takes effect on July 1, 2007.

Is Marriage (or Its Equivalent) Right for You?

Now that same-sex couples in a significant minority of states actually have the opportunity to enter into legal relationships that include important rights and responsibilities, you will have to decide whether marriage or a marriage equivalent like domestic partnership or civil union is the best thing for you. Getting married or registering under new laws is like sitting in the emergency exit row of an airplane: you need to receive special warnings and be prepared for some real uncertainties, legally speaking. (For purposes of this discussion, we use "marriage" as shorthand for both marriage in Massachusetts and the various other legal relationships discussed here.)

How Do You Want to Structure Your Relationship?

Even though many LGBT activists have worked for decades for the kind of social and legal legitimacy that marriage confers, plenty of people have mixed feelings about it. Some reject domestic partnership and civil unions as a "second class" legal status. Others believe that marriage as an institution should be abolished, and the state should stay out of people's private lives. There are also a great number of people who agree that marriage should be available to all, but they themselves would not marry -- either because they prefer the freedom to make their own agreements about how to share their lives, without the encumbrance of the state's requirements, or because marriage is not in their best economic interests. Whether or not you feel ready to take on the responsibilities of marriage, you now have options that earlier generations of same-sex couples could only dream of. Explore these choices, learn about them, talk about them -- and then make the decision that's best for your family.

One of the most important complications is that it remains unclear whether other states will recognize your relationship, or how the federal government will treat your partnership. It may take quite a few years for the courts to unscramble all of these complexities.

In addition to the uncertainties that go with getting married under untested laws, you should consider the same pros and cons that every couple considering marriage should contemplate. For example, depending on your economic situation, marriage might be a positive or a negative move -- remember, marriage means not just sharing assets, but also joint liability for debts and potentially the obligation to pay alimony if you break up. Marriage and divorce records are public, so there's no staying closeted once you tie the knot.

Marrying may cause you or your partner to lose state-provided public benefits, because your partner's income will be counted along with yours.

Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action -- quite often with the help of a lawyer. Usually, there is a residency requirement for divorce, so if you intend to marry, register, or enter a civil union in a state other than the one in which you live, consider the ramifications if your relationship does not last. In contrast, unmarried couples can break up informally, and without the state requiring them to live there for a certain period of time.

In most states, assets acquired during marriage must be divided equally if the marriage ends; in community property states the partners' earnings during the marriage are considered community property unless you agree otherwise in writing. By contrast, if you are unmarried, your property is co-owned only if you have an agreement to make it so and have titled it jointly; and the same is true for debts and obligations. Transfers of property when a relationship ends are tax-free for legally married couples, but not for unmarrieds, and probably not for most couples in domestic partnerships (although your state's law may provide an exemption).

If you don't marry, you will need to make sure that you write a will, create a trust, or designate your partner as beneficiary on your IRA, in order to pass assets at your death in the same way that spouses can without any written documents. And certain tax benefits are forever denied to unmarried couples. For example, for married couples, the surviving spouse generally inherits all the property if the partner dies without a will and has no children; this would be true for marriage-like relationships as well. However, at death, a bequest from one spouse to another is free from federal estate tax, regardless of its size. Because this is a federal law, it does not apply to same-sex couples, regardless of the legal status of their relationship. In some states, you can't disinherit a spouse unless you have a pre- registration agreement that addresses the issue specifically.

If you have children or hope to raise a family, marriage is probably the right option. Married couples by law have equal rights to raise their children, as well as equal obligations of support. If the relationship breaks up, both parents can seek visitation and custody, and if one parent dies, the other steps right in as the primary legal parent. The same is true for unmarried couples only if both are legal parents of the children. Otherwise, the second parent may be left out in the cold (see Chapter 10).

Introduction

Every year, thousands of heterosexual couples get married without giving a second thought to the legal ramifications of their decision. Most assume they will share their finances while they're married, and often one partner supports the other. They own property together; often one partner owns property before the marriage and adds the new spouse to title after they marry. They give each other gifts, sometimes very expensive ones. They have children and no one questions each spouse's legal relationship with those children. If they divorce, they assume the court system will accommodate their legal needs. They transfer property between themselves to settle the divorce without any concern about tax consequences.

You, on the other hand, cannot afford to enter into a legal relationship with your partner without considering the financial and legal consequences. While your state's law may give you the same rights and responsibilities enjoyed by heterosexual married couples, the lack of recognition by the federal government is a distinction that makes all the difference. It's critical that you understand the law in your state and that you consider carefully the decision to enter into a marriage or marriage-like relationship.

For example, let's say that you and your partner live in Connecticut. You know that you have the right to enter into a civil union, but you have no idea what that really means. If you do it, will you be responsible for each other's debts? Will you have to share your income? Will you file joint tax returns? If you have children, will you both be legal parents? If you break up, who gets what, and who decides? Your partner is gung-ho about becoming legal partners, believing that it would demonstrate your commitment to each other, make a political statement about same-sex relationships, and make your lives better. You're completely committed to the relationship, but you wonder about the details of the civil union relationship -- and you're not sure it's the best option for the two of you.

What should you do? First, review the material below to learn the basics about how your state law treats same-sex couples who enter into legal relationships. Next, talk to a lawyer about how the rules would apply to your particular circumstances. Find out whether a written agreement signed before your civil union would protect you from the elements that you don't want, while allowing you the benefits that would work for your relationship. Talk with your partner about what you learn, and make an informed decision about what you want to do.

This chapter discusses the seven states with marriage or marriage-like relationships, beginning with Massachusetts, currently the only state that allows same-sex couples to marry. The chapter also covers marriage-like relationships in California, Connecticut, Hawaii, Maine, New Jersey, and Vermont, and brand new same-sex relationship laws in New Hampshire, Oregon, and Washington.

There are some things you should keep in mind no matter which of these states you live in:

Having the same rights as married couples in your state does not translate over to federal rights. The federal government does not recognize a Massachusetts marriage nor a domestic partner registration or civil union in any other state. This means that none of the over 1,000 federal rights that go along with marriage apply to same-sex couples, no matter how significant their legal relationship is under state law. For example, same-sex couples cannot take advantage of Social Security benefits, immigration privileges, or the marriage exemption to federal estate tax. For more about why federal marriage rights matter, see www.freedomtomarry.org.

If you want to marry or register but don't want all of your state's marriage rules to apply to you, you may be able to enter into a prenuptial or pre-registration agreement -- but you'll need to consult a lawyer. Every state that recognizes same-sex relationships also permits prenuptial or pre-registration agreements. You can use a pre-registration agreement to define your financial relationship by stating what property is separate and what is shared, and providing for division of property and payment of support should you separate. Each state has its own rules about pre-registration agreements, and it's crucial that you see a lawyer before preparing an agreement. If you want to learn more about pre-registration agreements, see Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving (Nolo). If you live in California, you should also use Prenups for Partners: A Guide for California Domestic Partners, by Katherine E. Stoner (available as an eGuide download from Nolo).

People who are in the military should be cautious about entering into legal relationships. For members of the military, marrying a same-sex partner or registering as domestic or civil union partners can have serious consequences -- it's likely that doing so would constitute "telling" under the current "Don't Ask, Don't Tell" policy. If you're in the military and want to marry or register, take the time to talk with an attorney first -- one with some expertise in the area of military law.

Immigration issues and public benefits are also red flags that may mean it's better not to register. If one partner is not a U.S. citizen and is either undocumented or here on a nonimmigrant visa, it's probably not a good idea to register as domestic partners. Registering might be considered evidence of intent to stay permanently in the U.S., which is not allowed if you are on a nonimmigrant visa. In addition, if either partner is on public benefits like SSI or Medi-Cal, domestic partner registration could cause more trouble than it's worth. If you're in any of these situations, talk to a lawyer before you register.

Parentage isn't necessarily secure under federal law. In all of the states listed in this chapter except for Hawaii and Maine, a child born into a marriage or registered domestic partnership or civil union is the child of both partners under state law. Both parents' names can go on the birth certificate immediately, and the non-biological or "second" parent has equal rights with the biological parent. However, the federal government may not recognize the second parent as a parent for purposes of Social Security, COBRA coverage, or other federal purposes, so it's still important that the second parent use a legal adoption procedure to ensure that the parent-child relationship is protected. There's more about parentage in Chapter 5.

Use a court procedure to change your name. Although all states allow married people to change their names upon marriage without a court proceeding, there is still discrimination against same-sex couples when it comes to name changes. If you want to be sure that your name change is legal, use a court procedure.