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For Pennsylvania Residents Considering a Same-Sex Marriage
In 2004, Massachusetts became the first state to allow same-sex partners to legally marry. In light of this breakthrough measure in Massachusetts and now that other states have followed, such as Connecticut, District of Columbia, Iowa, New Hampshire and Vermont, we have received many inquiries from same-sex couples residing in Pennsylvania who wish to marry in other states. The following are some considerations that should be addressed before Pennsylvania same-sex couples decide to marry in other states:
NO FEDERAL RECOGNITION OF YOUR MARRIAGE – Currently the federal government, operating under the Defense of Marriage Act, does not recognize same-sex marriages under any circumstances. This means that same-sex couples with a valid marriage from another state will not receive any of the 1,000+ federal benefits associated with marriage. These benefits include the ability to file joint income taxes and the ability to collect Social Security benefits from a spouse. Additionally, same-sex couples in a binational relationship will not be permitted to use their marriage as a means to secure permanent legal U.S. residency for a non-resident spouse.
NO GUARANTEE YOUR MARRIAGE WILL BE RECOGNIZED IN YOUR HOME STATE – While getting married in another state will give couples access to all of the protections of marriage while in that state, the legal effects on the couple once they leave the state vary greatly. Currently, only a handful of states recognize a same-sex marriage, performed out of state and many of those states will convert the marriage to something else. For example, New Jersey will recognize a Massachusetts same-sex marriage as a civil union, while Pennsylvania will not recognize any same-sex marriages. However, New York, which has no in-state same-sex unions, will recognize an out-of-state same-sex marriage. If your home state does not recognize your marriage, you are not entitled to any of the state benefits, including inclusion on your spouse's health insurance, the right to hospital visitation or paid leave in the event that your spouse is ill, and the right to inherit your spouse's property if your spouse dies without a will. These factors should also be taken into consideration if you decide to travel to another state, since many of the benefits of a same-sex marriage are considered void the second the couple crosses the border into a hostile state.
DIFFICULTY IN THE EVENT OF A DIVORCE OR BREAK-UP – Same-sex couples who marry in another state where they do not have a residence should be cautioned that they may face difficulties in the event of a future break-up. Marriages can only be ended by a legal divorce proceeding, and all states have residency requirements before a person can file for divorce that range anywhere from six to twelve months. If you live in a state that does not recognize your marriage, you may have difficulty obtaining a divorce in that state. If you cannot obtain a divorce in your home state, at least one partner to the marriage will have to establish a legal residency in the state where the marriage was performed or where same-sex marriages are recognized in order to begin a divorce action.
Residency requirements vary from state to state. If neither partner is able to establish residency in the state where the marriage was performed or another state recognizing same-sex marriages, you may be precluded from getting a divorce, which can create the following problems:
- Neither partner will be able to enter into another legal marriage, domestic partnership, or civil union;
- A legal spouse who is a former partner could make an election to be a beneficiary and receive a portion of your estate, even long after the relationship has ended if no divorce is ever granted, even if you change your Will to eliminate that person as a beneficiary;
- A former partner could relocate to a jurisdiction that recognizes the union and sue for equitable distribution, alimony or spousal support or to make an election against your estate;
- There is a possibility that an employer would not permit a party to add a new partner to health insurance benefits if a previous marriage to a former partner still exists;
- One party may be ineligible for public assistance if the former partner's income is considered in determining eligibility;
- A former partner may be in the position to make medical decisions on the other partner's behalf; and
- A future petition for the adoption of a child may require the consent of both spouses even if the couple is no longer together.
ADDITIONAL CONSIDERATIONS – In addition to the above considerations, there are some special issues that should be addressed prior to getting married in another state:
- If either partner is in the military, getting married could initiate dismissal proceedings or disciplinary action under the military's policy of Don't Ask, Don't Tell;
- If either partner is receiving public assistance, getting married might terminate those benefits if both partners' incomes are considered in determining eligibility;
- Some states and many countries will not permit same-sex couples to adopt a child, and a legal marriage in another state may need to be disclosed in adoption applications;
- Adoption agencies may not permit a couple to adopt a child if one of the partners has a previous relationship through a marriage that has not been terminated by divorce; and
- There are some states, such as Delaware and Wisconsin, which impose criminal fines and penalties on anyone who enters into a marriage outside the state if the marriage is invalid in the state.
Ultimately, marriage is a serious commitment with many personal and legal obligations. The decision to get married should not be entered into lightly, and same-sex couples must address specific issues relating to their union to ensure that they understand the implications of their decision. It is advisable that all same-sex couples consult a knowledgeable attorney before traveling to another state to get married. Additionally, even married same-sex couples must still take extra steps to legally protect their relationship such as having wills, powers of attorney and contracts regarding ownership interests in property. Contact an attorney at Jerner & Palmer, P.C. for a consultation specific to your individual situation.
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