A Legal Guide for Lesbian and Gay Couples by Denis Clifford, Frederick Hertz, Emily Doskow

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Table of Contents

Read an Excerpt

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 aboutbecoming 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.

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.
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.

Relationship Recognition in the Workplace

Marriage in Massachusetts raises a whole set of issues for employers and employees. Pension and retirement benefits are generally governed by federal law, but employers sometimes have to look to state rules to make decisions about benefits. Massachusetts employers are required to offer non-federal benefits for all married couples, whether they are of the same or opposite sex.

The conflict between Massachusetts's marriage law and the federal Defense of Marriage Act will undoubtedly lead to litigation before too long, as will the refusal of some employers to provide marital benefits to the same-sex spouses of Massachusetts employees. (A recent survey indicated that while the majority of Massachusetts employers already provide health benefits to same-sex partners and will continue to do so, only about 35% intend to provide retirement benefits equivalent to those provided to opposite-sex spouses, despite the new marital rights that those employees enjoy.)