The law on same sex marriages is changing every day. If your state recognizes same sex marriages or legal union and you are about to enter into a same sex marriage or legal union, there are a few legal issues you should consider.
If you want to have children, your status as a same sex couples can significantly affect your rights. Once you are married, both spouses will have the same responsibilities and rights regarding children and in case of a divorce, both are eligible to seek visitation and custody. In case one spouse dies, the other will automatically become the children’s primary legal parent. However if there is no marriage, such benefits will not be available to both parents. Only one parent can take decisions that affect the children. Upon the death of that parent, the other spouse will not get any rights.
Joint Property Rights
When a couple is married, both of them will own the properties acquired during the marriage. In case the couple is not married, then the property acquired by either spouse will belong to the one who acquires it. This should be an important consideration if you are deciding whether or not to get married.
If married couple divorces, then both spouses are entitled to half of the marital property – property acquired during the marriage. In fact each spouse will also be liable for the debts of the other. In case of unmarried couples, each partner will own the property that he or she acquired and will be liable for his or her debts. One important factor you need to consider is that only married couples can seek spousal support in case of a divorce.
Death and Taxes
In am marriage when one spouse dies, the law has certain provisions for dealing with taxes, property and paternal rights. In case of an unmarried couple, the law does not provide for such provisions but an unmarried couple can enter into an agreement to decide on these issues. But certain issues such as inheritance and gift taxes cannot be avoided by contract. Many property transfer taxes that apply to unmarried couples do not apply to married couples. Cost efficient transfer of assets from one partner to another in the absence of a marriage can be a difficult task.
There are many government benefits that are available only to legally married couples – health care, social security, nursing home care, unpaid leave to care for family members, etc. Same sex marriages do not entitle you to federal benefits applicable to opposite sex spouses. However same sex marriages may confer certain state benefits on the spouses.
Whether you like it or not, you must perform certain formalities for a marriage to be legally valid. If you have a problem with the formalities, you can remain unmarried but live together.
For the purpose of immigration, marriage is a contract between a man and a woman as defined in the Defense of Marriage Act. Anyone who marries a US citizen is entitled to US citizenship. But since immigration law does not recognize same sex marriages, an alien same sex spouse will not be automatically entitled to US citizenship. In fact a same sex marriage can sometimes adversely affect your immigration status.
Making a Choice
Consider the above issues and discuss them with your partner before deciding whether or not to get married. Marriage will make sense if both of you are US citizens and you have no problems sharing each other debts and you have plans on how to bring up the kids. If you aren’t keen on sharing debts or immigration status is a problem, then marriage may not be in your interest.
One important consideration is the constant change of laws dealing with same sex marriage. For example California recognized same sex marriages for sometime before declaring them illegal. You must check to see if your state recognizes same sex marriages. Consult with an experienced family law attorney.