Marriage for Same-Sex Couples

In 1996, Congress enacted the Defense of Marriage Act (DOMA), which provided only one man and one woman could be legally married as it pertained to federal benefits for married persons in the U.S.

In 2003, Massachusetts became the first state to legalize gay marriage after DOMA. California, Connecticut, Iowa, New Hampshire, Vermont, and the District of Columbia legalized gay marriage between 2008 and 2009.

In 2013, the U.S. Supreme Court struck down part of the DOMA statute in the case of U.S. v. Windsor. In that case, the court held that it was in violation of the U.S. Constitution, specifically the Due Process and Equal Protection clauses, by limiting marriage benefits to only heterosexual couples.

Couples who had already been married in a state that legalized same-sex marriages were no longer subject to federal barriers. The decision in 2015 led to the legalization of gay marriage in several states, leaving only 20 that did not.

A landmark decision was made by the Supreme Court in Obergefell v. Hodges, which ruled in favor of gay marriage. Basically, the court ruled that states that prohibited same-sex marriage licenses violated the Equal Protection and Due Process Clauses.

In June 2015, the U.S. Supreme Court reversed the court of appeals decisions and declared same-sex marriage legal in every state. Prior to the U.S Supreme Court’s decision, only 19 states recognized same-sex marriages within their borders. Since same-sex marriage is now recognized in every state, same-sex couples can enjoy the same benefits and protections as opposite-sex couples.

The only states that used to recognize same-sex marriage before the 2015 U.S Supreme Court ruling were were California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Washington D.C.

What Are the Rights and Benefits of Same-Sex Unions?

There are many rights conferred by marriage, including:

• You can file joint income statements to take advantage of tax benefits.
• Benefits under employment contracts, for instance, insurance benefits from each other’s employers.
• If one partner becomes incapacitated, the other can make medical decisions.
• The right to make burial arrangements or to automatically stand in probate court on the death of a spouse.
• Legal protections, including marital communications privilege.

Other legal and non-legal benefits may exist in addition to those listed above.

Obtaining Rights Through Legal Means

In the past, it was not uncommon to hear of same-sex couples crossing state lines to get married. However, many states that offered gay marriages had a residency or other similar type of requirement, making the marriage unlikely or the potential for fraud high.

There was no guarantee that the couple’s home state would recognize the marriage as valid. There was a copious amount of misinformation regarding the application of the Full Faith and Credit Clause to gay marriages. Essentially, the Full Faith and Credit Clause mandates that judgments issued by a court be valid in any state court.

If two people of the same sex are in a committed, long-term relationship and want to make medical decisions for one another, they can draft a living will or give their partner durable power of attorney.

It is possible for one partner to adopt the other legally, simply to gain some of the legal protections associated with a familial bond. The couple may be entitled to many of the same rights as married couples, including:

• Hospital visitation
• Inheritance rights
• Right to make medical decisions

States have varying laws regarding adoptions of adults, and it is possible that courts will frown on adoptions solely aimed at securing inheritance rights. There is also the possibility of severe and unintended tax, probate, and other consequences.

Is There an Alternative to Same-Sex Marriage?

Yes. Here are some other types of unions:

• Cohabitation: affords no additional rights except for the fact that the couple lives together. There are no property rights between them, so if one died, the other would not inherit. A cohabitation agreement will usually specify how costs (such as rent) will be shared or what will happen if the relationship ends. There are most likely no special rights or privileges associated with this roommate/girlfriend/boyfriend situation.
• Common-Law Marriage: not recognized in most states, but if your state recognizes this union, no formal marriage application is necessary in order to be lawfully married. The rights of a common-law marriage are the same as those of a “typical” marriage. In many states, common-law marriages are recognized if they occurred before a certain date, such as before January 1, 1999.
  • Even states that don’t recognize common-law marriages usually recognize valid common-law marriages that were formed before the ban was enacted. In Georgia, common-law marriage is not recognized, but a couple from Colorado with a common-law marriage formed before 1997 (when Georgia banned it) would be recognized.
• Civil Unions: alternative legal union options in places where the word marriage is not used or in lieu of marriage with certain legal protections and benefits. In many states, civil unions were created to appease groups that demanded marriage equality; however, civil unions did not always offer the same benefits.
  • As civil unions are not recognized by the federal government, couples often lose out on federal benefits like social security. With the legalization of same-sex marriage, many states will allow same-sex civil unions to form become marriages. Following the legalization of same-sex marriage, some states, including Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont, have converted civil unions into marriages.
• Domestic Partnerships: similar to civil unions offering legal benefits and protections without marriage. However, they do not offer the same benefits as marriage. Domestic partners inherit their partner’s assets after being taxed (married couples are not taxed). Each state has its own requirements for domestic partnerships. Domestic partners must live together and intend to cohabitate for the duration of the relationship. Domestic partnerships are limited in some states. CA, for example, allows domestic partnerships for same-sex or heterosexual couples (if one member is at least 62 years old).

Are Divorces the Same for Same-Sex Spouses?

Yes, there is no difference between heterosexual divorce and same-sex divorce. You will also need legal grounds for your divorce if your state requires them. Divorce grounds include irreconcilable differences, adultery, abuse, and imprisonment.

Same-sex divorce will also face the same parental rights and custody issues as heterosexual divorce. It can, however, be difficult to establish how it is actually applied. Depending on where you live, questions such as which parent is on the birth certificate or who is the biological parent (if applicable) can raise concerns.

If you are going through a same-sex divorce and have concerns about your parental rights, you should consult a lawyer.

Do I Need an Attorney?

If you are involved in a same-sex relationship, it is wise to consult with a family attorney when planning out a life together with your partner. If you have been discriminated against in any way based on your sexual preference, a lawyer can represent you and hold the other party accountable. By hiring the right lawyer, you can not only plan for the future but also obtain the one you and your partner want.