Questions & Answers for Same-Sex Couples Considering Tying the Knot
Can same-sex couples get married now in Massachusetts?
Yes! As of July 31, 2008, even out-of-state couples can marry in Massachusetts. Governor Deval Patrick signed a bill repealing a 1913 law that barred couples from marrying in Massachusetts if their marriage would not be recognized in their home state. Lawmakers included a provision to make the repeal effective immediately.
Do we need a marriage license?
Yes. Both people must apply in person to any city or community clerk within the state. There is a three-day waiting period between the date of the application and the date the license is issued. Weekends and holidays are included in the three-day period, but the day the application is made is not. (If you apply on Friday, the license will be issued on Monday.) Many couples have gotten the waiting period waived so that they could get their licenses on the spot. If you’re interested in such a waiver, ask the clerk at the office where you intend to apply for your license.
What’s the age requirement?
Both people must be at least 18. You may be required to show a birth certificate as proof.
Is a medical certificate required?
No. They used to be required, but the state ended the requirement in 2005.
If we already got married in another state or country will Massachusetts recognize our marriage? What if we have a civil union or domestic partnership?
Massachusetts will recognize your marriage. Just as it would recognize opposite-sex marriages from another country or state, Massachusetts would consider you married and treat you as such under state law.
Legal recognition of civil unions and domestic partnerships in Massachusetts has not been determined. We think that Massachusetts should respect the legal status of civil unions or domestic partnerships that are intended to be parallel to civil marriage in all respects under that state’s laws. This would include civil unions from Vermont, Connecticut, New Jersey and New Hampshire and domestic partnerships from Oregon and California. However, it is not yet clear what effect those legal unions are being accorded in Massachusetts. Domestic partnerships from other jurisdictions which do not approximate marriage may not be recognized in Massachusetts. We’ll provide updates as this situation develops.
Will my marriage be valid outside of Massachusetts?
If you go to Massachusetts and get married, you will be married. Whether federal and other state governments and private businesses will respect your marriage is a more difficult question. Businesses that already recognize same-sex couples (through domestic partnerships or similar systems) almost certainly will. It’s hard to say what will happen with businesses that don’t recognize same-sex couples yet. Some probably haven’t been asked and may be willing.
If we are married in Massachusetts but live elsewhere, will we have the same legal rights and responsibilities as heterosexual couples?
It depends on whether your home state recognizes the marriage. See the question above.
If we get married in Massachusetts, should we sue to force the state to recognize our marriage?
Before you begin any kind of case about your marriage, you should contact the ACLU or one of the other LGBT legal organizations. You may have a good claim that should be brought, but it’s also possible to do serious harm by suing. In 1997, an Alaskan couple sued the state for the right to marry. After they won a preliminary hearing, the state, with a 68% majority, passed a constitutional amendment, banning same-sex marriage. That ended the case. It also prevents any state court or the state legislature from ever allowing same-sex marriage until the people vote to change the state constitution again. The state has even used the constitutional amendment as an excuse not to recognize domestic partnerships. We’re fighting this lawsuit right now.
If you think you would like to be involved in a case to have your marriage recognized in your home state, contact us by phone at 212-549-2627 or by e-mail at firstname.lastname@example.org.
What should I say when asked if I’m married?
Say that you’re married (after all, you are) on applications for jobs, credit, mortgages, insurance and medical treatment, etc. However, if you know that the agency or organization asking does not recognize same-sex marriages, and especially if saying you’re married will get you some benefit, you should probably make it clear that your spouse is someone of the same sex and that you have been legally married in Massachusetts. If you don’t, you could be accused of acting improperly, and there could be consequences. This is especially true of forms from states other than Massachusetts and from the federal government, such as tax forms, Immigration and Naturalization Service (now known as Bureau of Citizenship and Immigration Services) forms, Social Security forms, etc.
You might feel you want to use your government forms to make a stand on the issue. We understand anger at not having your relationship recognized, but think long and hard about any risk you take to make a statement. Willfully breaking the law on principle may leave you in a lot of trouble.
Would we be entitled to file a joint federal tax return?
No. The Internal Revenue Service will not recognize same-sex marriages. Since you are required to declare your marital status, the issue becomes tricky. You don’t want to deny your marriage. The best bet would be to file as single and note on the form that you are married to a same-sex partner. Talk to an accountant if you can before you file.
If I get married in Massachusetts, can I sponsor my same-sex spouse for U.S. citizenship?
No. There’s a law that says the federal government will not recognize same-sex marriage, and that includes the immigration. While this policy may be challenged in court, you could be putting your non-national partner at risk of deportation by attempting to sponsor him or her until the courts have struck this policy down or Congress has repealed it.
What happens if we decide to split up?
The only legal way to get out of a marriage is to get a divorce. Unfortunately, the only states that we know for sure will divorce a same-sex couple are Massachusetts and California. Massachusetts has a one-year residency requirement. In order to divorce in California, at least one of the parties to the marriage must be a resident of California for at least six months and of the county in which the divorce is filed for three months before filing a divorce petition. Vermont, which recognizes civil unions, may also allow you to dissolve your Massachusetts marriage, but Vermont also has a one-year residency requirement. New York law appears to respect same-sex couples’ out-of-state marriages even though same-sex couples cannot yet marry in that state. Married gay and lesbian couples should be able to petition for divorce in New York; however, New York also has a residency requirement for divorce. To make matters more complicated, the fact that your home state might not recognize your marriage or let you get a divorce doesn’t necessarily mean you get out of the legal obligations of marriage.
If we break up, could I be required to pay support to my spouse?
This will depend largely on whether your state recognizes the marriage. If you live in Massachusetts, Vermont, or California, you could be required to support your ex to the same extent as any other divorced person. In states that don’t recognize your marriage and won’t allow you to divorce, this is less likely. But if your ex moves to a state that does recognize your marriage, you may not be off the hook.
If I am married to someone else, can I get a same-sex marriage in Massachusetts?
No, not until you’ve gotten a divorce. Entering into another marriage before you get a divorce is a crime in every state. Even if your state doesn’t recognize same-sex marriages, it’s possible that you could be prosecuted.
If I have a civil union from Vermont with someone else, can I get a same-sex marriage in Massachusetts?
No. Since Vermont treats a civil union as the legal equivalent of a marriage, you first have to dissolve the civil union before entering into a marriage with someone else. Otherwise you commit the crime of bigamy. Dissolving the civil union could be tricky however, because you have to live in Vermont for a year to get the civil union dissolved there. So far, there is only one state trial court decision (from Iowa) dissolving a Vermont civil union, and the judge relied on a legal ground that didn’t actually require him to decide whether the civil union should be recognized as valid under Iowa law. As a result, it is unclear how other states will handle the issue when it comes up.
What about a prior domestic partnership?
If you have entered into a domestic partnership in California since 2005, it would also be a crime to get married to someone else in Massachusetts without first dissolving your domestic partnership. If you have a domestic partnership from a city or county registry, check with the municipality for its rules. While you may not be subject to criminal charges if you marry without dissolving that kind of domestic partnership, it would violate some domestic partnership policies and could expose you to legal liability. Since it’s generally pretty easy to dissolve a city or county domestic partnership, you should do it before getting married.
If we get married in Massachusetts, will it be easier for my partner or me to adopt our child?
If only one of you is legally a parent (through biology or adoption) a Massachusetts same-sex marriage probably won’t make it easier for the other to adopt. Every state allows “step-parent” adoptions (so step-parents can adopt the children of their spouses). Some allow “second parent” adoptions (so unmarried partners in both gay and heterosexual relationships can adopt the children of their partners). In the states that already allow second parent adoption, marriage isn’t necessary. Most states that don’t allow second parent adoptions probably won’t recognize same-sex marriages from Massachusetts, for their step-parent adoption laws.
For similar reasons, getting married in Massachusetts probably won’t make it any easier for both partners to become legal parents if you decide to have a child after you’re married.
If we get married in Massachusetts, will that mean that my spouse automatically becomes the legal guardian of my children?
No. Even if you were to get married to a person of the opposite sex in the U.S., your spouse would not become legal guardian of your children until you get a “step-parent” adoption.
Would getting married in Massachusetts affect any of the legal documents that we drafted prior to our marriage?
Yes. Under Massachusetts law, all wills executed prior to marriage automatically become invalid. This is true even if you and your spouse willed your joint property to each other. Without a valid will, spouses inherit according to the state’s intestate succession laws, which essentially divide the deceased’s assets among his or her closest relatives. While this would entitle you to inherit some of your spouse’s property, your spouse’s assets would also be split among other close relatives, including parents and children. Settling an estate without a will also takes longer. For these reasons, it’s important that you consult a lawyer about whether to execute new wills after you marry.
If my partner and I have already gotten married in Canada or California, or if we’ve entered into a Vermont civil union, can we get married in Massachusetts?
We haven’t completely figured this out yet, but it’s probably not a good idea. To get married in Massachusetts, you’d basically be saying that your earlier attempt to make your relationship legal wasn’t valid. The whole point of committing yourselves through a Canadian or California marriage, or a Vermont civil union is to try to get legal protections for your relationship. By going to Massachusetts to get married after having already entered into an earlier commitment, you run the risk of a court interpreting this earlier commitment as invalid. One obvious place where this could be a problem is if you decide to separate. A judge could say that your earlier commitment wasn’t valid and deny one partner his or her rightful share of community property. The issue could also come up in child custody and visitation disputes.
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