By SUSAN SILBER & SUSAN FRANCIS
Hearing about the first couples being issued their marriage licenses, receiving the happy news of friends planning to get married, contemplating our own futures and seeing couples finally able to marry on Jan. 1, we, as the rest of our community and allies, are nearly left speechless by the historical magnitude of what is happening in our state.
We share the joy, happiness and relief of knowing that our families will be recognized and treated with more protections than at any time in our history. However, because of the Defense of Marriage Act (DOMA), even if you do choose to marry, your relationship will be left unprotected by more than 1,000 federal laws enjoyed by straight married couples.
Can we marry? The patchwork of relationship recognition for our families has evolved quickly in the last 10 or so years. If you were legally married in another state or country, then you are legally married in Maryland and you cannot marry again. If you have a civil union or registered domestic partnership (including an affidavit of domestic partnership in Maryland), then you can marry as long as it is to the same person. Marrying will carry the additional state legal recognition and benefits.
If you have a civil union or domestic partnership, and you want to marry someone else, you need to legally dissolve your previous status. If you live outside Maryland, you can marry without any residency requirement, but if you live in a non-recognition state not only will your marriage not be recognized when you return home, if you ever need to end your marriage you may have a problem getting divorced since your home state won’t recognize your marriage even to end it, and Maryland has a one-year residency requirement for divorce.
What does marriage mean for parenting? Regardless of your marital status, you must do a second-parent adoption. It’s the only way to ensure that your parental relationship to your child, as the non-biological parent, is recognized and honored by all states. An adoption order from a court must be recognized by other states. Two lesbian moms who are married can be named on the baby’s birth certificate, but being named on the birth certificate does not establish parentage if you move to a non-recognition state.
Anytime you leave Maryland, you may be placing the relationship with your child in jeopardy, because a state that doesn’t recognize your marriage does not have to recognize all of the things that flow from it, including your status as a second parent based solely upon your marriage. Two dads cannot be named on a birth certificate, and also need to go through the adoption process. Once the adoption has occurred, DOMA does not apply to the parent-child relationship, and the child is eligible to receive federal benefits that flow from the second parent (e.g., social security benefits).
What else can we do to protect ourselves? Regardless of whether you choose to marry, you should do your estate planning. As we know, our families still encounter hostility from our families, hospitals, funeral homes, among others, and it’s important to make sure we’ve taken the legal steps to ensure our wishes are honored. In addition, you might want to consider re-titling your property to tenancy by entirities. It’s a status only available to married couples and prevents creditors of one of the parties from trying to secure an interest in your home. Up until now, same-sex couples have not had that option.
It also might be appropriate for you and your partner to create a prenuptial agreement in order to navigate potential issues including property, allocation of other resources and committing to pursue a non-adversarial method (like mediation or the collaborative process) if you need to end your relationship in the future. Because recognition of the length of our relationships (there may be a significant difference between how long we’ve been in a committed relationship and how long that relationship has been recognized by the state), or the way we view our family which may be much broader than what the court would consider our legal family, the best way to protect ourselves and our families may be to create a prenuptial agreement.
The agreement can clarify issues and resources most important to our families, instead of letting a court make those decisions for us. We can decide how to best allocate resources and property, whether alimony should be considered, and we can have those conversations when we’re best able to have them without conflict. It’s an opportunity to have the benefits of marriage and also customize our responsibilities to our families and make our own decisions. If you’re already married, you also may want to consider a post-nuptial agreement, which would provide the same benefits of determining the best outcomes for your family.
What is DOMA’s impact? As mentioned in our Nov. 30 Blade article, because of DOMA, there are definite drawbacks for some couples choosing to marry. It’s important to think through how your future might be negatively impacted by choosing to marry and recognize the benefits that won’t be available until DOMA is repealed. There are a number of benefits that same-sex married couples won’t have access to including Social Security spousal or survivor benefits, veteran benefits, federal health insurance, some retirement benefits and death benefits. It also impacts issues like health insurance coverage and a multitude of taxes. The U.S. Supreme Court has decided to hear the Windsor case challenging the federal definition of spouse under DOMA as a man and a woman. A decision is expected in June 2013. This will be a time for re-evaluation.
As we rejoice in this most significant step toward equality in our state, we encourage you to contemplate the impact that choosing to marry might have on you, your partner and your family. For many couples, it is a good idea to speak to a lawyer first to make sure you are fully informed of all the legal implications while making this important life decision.
Susan Silber and Susan Francis are attorneys at Silber, Perlman, Sigman & Tilev, P.A. and practice in Maryland and D.C. Reach them at email@example.com and firstname.lastname@example.org.