Should We Get Married?

Now that the Supreme Court has decided Windsor and ordered that the Federal government recognize the marriages of gay and lesbian couples when granted by a state, I have been receiving a smattering of questions about marriage.

Specifically, same-sex couples want to know, “Should we get married?”

My answer is a definitive maybe.

Your answer, if you are asking the same question, will vary depending on why you want to be married, I suppose. Are there problems joining an institution which you may fundamentally disagree with? Probably. Could your joining the institution of marriage be a compromise of your stated and deeply held values? Maybe. Are there enough legal documents that I or any competent attorney could draft that would ensure that the person you love (sorry poly families) has the legal protections provided by marriage? Absolutely not. While I consider myself fairly apprised of what those protections are, every day I learn about other protections that marriage provides and those protections literally impact every area of a couple’s life together.

These are some questions that my clients have asked and which should be answered:
“What are the legal rights associated with marriage?” At the federal level there are over 1300 of them which are too many for me to remember on my best day. At the state level, well, that depends on the state. In short, there are a ton, a ton.

“We were married in NY/DC/MD/WA/IA or one of the other 14 states that grant marriage licenses to same-sex couples. What does that mean in NC?” Zilch. Zero. Nada. Nothing. I am sorry and there is no way for me to buffer that answer. Same-sex couples validly married in another state will be treated as strangers in this state. In fact, the truth of the matter is that when you pass from a recognition state (that is what we call states that grant gay marriage) to a non-recognition state (that is what we call states that don’t recognize gay marriage) you pass through a invisible border that automatically strips you of your “marriedness.” It’s like a space-age electromagnetic field which you can’t see, hear or touch. Does that sound stranger than fiction? That’s because it is. Rumor has it that they were attempting to create a similar treatment that strips gay folk of their gayness but apparently good taste, humor, better than average fashion sense and the ability to sing all Broadway tunes is congenital so R&D couldn’t make it happen.

“What about our children? Did marriage in another state make us parents of our children?” No. You may both be legal parents of your children but not because of your marriage in another state. If one of you is a biological parent and one of you was granted a second parent adoption in another state, North Carolina must recognize you as legal parents of your children. If you haven’t been able to manage that you should consider having legal documents drafted to protect the interest of the non-biological parent like a parenting agreement and a document allowing your partner to make medical decisions for your child(ren).

“Since our marriage isn’t recognized in North Carolina, what do we do to protect our family?” You need to have your estate planning in order: will, durable power of attorney, health care power of attorney. If you have children, you need some additional documents like a consent to healthcare for a minor. You need to have financial agreements before you own property together. You need to have parenting agreements ideally before you have children together. Depending on how you decide to have children you may need a whole host of other agreements. See surrogacy, artificial insemination, in vitro, adoption etc. In short, you will need the equivalent of a small deciduous forest in paper which you will then need to carry around with you in your vehicle or on your person. It gives the term “undocumented” a whole new meaning.

“What about our access to federal benefits like social security or military benefits?” This answer is an evolving and changing answer. Some agencies have made their decisions. The Department of Defense for example has released their policy stance allowing same-sex members of the military leave to get married and all married folks will be granted the same benefits in the military. Some federal benefits come directly from the federal government and some are funneled through the states. Medicare for instance is a federally administered program while social security is a state administered federal program. The legal puzzle of what should be done when the federal government is required to recognize same-sex marriage but the state doesn’t has been a head scratcher. The Obama administration is working on policy guidance and the federal agencies are clarifying their policies and practices at a rapid clip. There are added complications based on if marriages are recognized based on where they are celebrated or where the married couple resides. Again the agencies are scrambling to get some more direct guidance to us all. Stay tuned for more confusion coming to a federal agency near you.

“Will all states eventually have to recognize same-sex marriage?” G-d willing and the creek don’t rise (This is a southernism meaning, “With any luck”). Yes. All states, I believe, will eventually have to recognize validly granted same-sex marriages. We heard it from the esteemed Justice Antonin Scalia first; the state laws banning same-sex marriage cannot be upheld in light of the ruling under Windsor. LGBT lawyers and many of the best advocates for the LGBT community agree. We don’t, however, know how long that will take and in what form and how political changes during the interim will make the lives of our families harder or easier than they have been. Here’s to living in interesting times, folks.

“Are there any reasons to get married?” There are legal reasons to get married. For instance, in bankruptcy a trustee cannot divide a home owned by a married couple if only one of them applies for bankruptcy. If your partner is in the military as a spouse you can have certain benefits: medical care, commissary etc. Generally, some legal benefits are contingent on your being married for a period of time. For instance, if you divorce your spouse and want to elect their social security benefit which may be higher than yours, you will need to have been married 10 years. And the list goes on and on and on. Certainly there are reasons which are neither legal nor economic that you may want to get married. I’ll leave those to you and your love(s).

“Are there any reasons not to get married?” Absolutely or so I am told. More on this in my next blog posting.

Milan Pham and the attorneys at NicholsonPham, PLLC provide legal services to the LGBT community in areas of family creation, adoption, surrogacy and estate planning (wills, trusts, health care powers of attorney and durable powers of attorney).