Same Sex Marriage in Maine: What You Need to Know

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If you are thinking about getting married to your partner, or you were married in another state or country, there are some things that you should know about Maine’s marriage law.

 

How to get married.

A couple who wants to get married in Maine must apply for a marriage license and pay a fee. You can apply at the town hall or city clerk’s office in the town where you live. If you don’t live in Maine, you can apply at any town hall. You can see what an application for a marriage license looks like here so that you can be prepared with the necessary information.

Some town offices will perform marriage ceremonies, and some do not because of staff or time issues. It is best to call ahead and ask.

 

What if you are already married or in a civil union?

If you are already married, you cannot marry someone else until you dissolve your prior marriage. This is true even if your marriage was not recognized by Maine until the passage of this new law. Maine now recognizes same sex marriages entered into in other jurisdictions. If you don’t dissolve your first marriage before entering a new one, the new marriage will probably be void. Because Maine now recognizes marriages from other states, you can file for divorce from your same-sex spouse in Maine.

 

What if I wasn’t married, but was a party to a civil union?

Even if you entered a civil union, and not a marriage, you may be married. Civil unions entered into in some states have been automatically turned into marriages even if you did not take any action. In other states, your civil union might not have turned into a marriage automatically. Even if it didn’t, some states might consider it to be a marriage. We don’t know if Maine will consider a civil union to be the same as a marriage yet, but if it does, if you get married without dissolving a civil union to a different person, your marriage might be void. You should consult a lawyer to figure out how to dissolve your civil union before getting married.

 

What about federal taxes and federal benefits?

The federal government does not recognize same sex marriages as of the date of this post because of the Defense of Marriage Act. That may change, depending on several lawsuits currently pending in various federal courts. Although the State of Maine will recognize your marriage, the Federal government will not. This means that, even if you are married, you and your same sex spouse cannot file joint federal tax returns, receive social security survivor benefits, take advantage of a Health Savings Account, receive military spousal benefits, or receive fair treatment under many other federal laws.

 

What if we travel to another state?

Other states may not recognize your marriage. Some states have laws that say they will not recognize same sex marriage. Some states have constitutional amendments. Some states do recognize same sex marriages. Because of the way that other states may treat your marriage, we recommend that you and your spouse should take some additional steps to protect yourselves.

 

What steps should we take to make sure we are legally protected

1. Make a will, powers of attorney, and healthcare documents. All couples should have these documents, but it is critical that same sex couples have these documents. Even if you don’t believe you will ever even travel to a state that does not recognize your marriage, these documents can make sure that decisions are already made if something happens to you or your spouse.

2. If you have joint children, you should do a second parent adoption. Although Maine law has a presumption that children born during a marriage are the children of both parties to the marriage, you and your spouse should still consider a second parent adoption of your children. Although it may not seem fair to adopt your own children, going through this process will make sure that there is an order in place that says that your child is your child, even if you are not biologically related. You should not take chances that someday someone may say that your child is not your child just because you not a biological parent. Some states that will not recognize your marriage will recognize a same sex second parent adoption, and it is far better to safeguard your legal relationship to your children ahead of time then to have to fight, and maybe lose, a custody battle.

3. Consider a prenuptial agreement for property issues. If you and your spouse have been together for many years before same sex marriage became legal in Maine, you might want to draw up a contract about what property belongs to whom. If you and your spouse ever divorce, Maine courts will probably consider anything acquired before your marriage to be non-marital and separate property, including things like retirement accounts. If you and your spouse have been together for years but haven’t been able to legally marry, then it is probably beneficial to have a document showing what you have that is yours together and what is not.

 

Every couple’s circumstances are different. If you have questions about same sex marriage and your circumstances, you can contact us at West End Legal, LLC, and we can help.

Same Sex Marriage Passed by Voters

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On November 6, 2012, Maine became the first state in the nation to approve same-sex marriage by referendum. That night was (rightly so) a night of celebration. Couples wept and danced, engagements were announced, and wedding plans commenced. As the initial shock and joy wears down, however, and those wedding plans start to really move forward, there are a few things that should be considered by couples as they prepare for their new, legally married, lives together.

The impact of this law.

Congratulations, Maine same-sex couples – you can get married once this law goes into effect! By approving Question One, the voters of our state determined that it is time for Maine to begin issuing marriage licenses to same-sex couples, something previously barred by our State version of the Defense of Marriage Act. As soon as the law goes into effect, couples will be able to obtain marriage licenses at their town office and can get married that same day. There is no waiting period after the license is issued; however, the license is only valid for 90 days after it is issued, and both spouses must be present at the time they apply for the license. You can check the Maine State website for the full requirements for obtaining a marriage license by following the link above; it is important to note that, if you or your spouse have previously been married or have entered a domestic partnership or civil union in Maine or in another state, you will have some other requirements. If you have any questions about the status of your previous marriage, civil union, or domestic partnership, to any spouse, same- or opposite-sex, you should contact a lawyer for advice. We can help you sort through any paperwork you may have to determine your current marital status, and, if you need to file for divorce or to terminate your domestic partnership, can help you do so.

When will the new law go into effect?

The marriage law passed by a final tally of 57% “Yes” to 43% “No” votes, according to the unofficial election results posted on the Portland Press Herald website as of November 8, 2012. The state of Maine had not yet posted final, official election results on their website as of November 11, 2012; however, such results will be available at this page once finalized. Now that the election is over and the results are in, the Maine State Constitution requires that Governor LePage announce by public proclamation that this law has been ratified by a majority of the people who voted in this election. The Secretary of State has 20 days after the election to approve the election results. The Governor then has 10 days after the vote has been determined to make this proclamation. After the proclamation has been made, the law will go into effect after a 30-day waiting period. This means that the likely effective date for the new marriage law will be January 5, 2013. Couples wishing to marry sooner should continue to check the State website in the event the Secretary of State approves the results sooner than 20 days after the election, as this would expedite the process and their waiting time may be lessened.

UPDATE December 3, 2012:  The law will go into effect on December 29, 2012.

Estate Planning

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Mapping it all out – protecting yourself and your loved ones with estate planning

Estate planning isn’t typically high on the list of priorities for any couple. It typically makes it onto the radar if a couple has children, is about to travel a long distance in a plane, or has had some sort of conflict with a family member and they want to insure that individual doesn’t cause a problem for their partner when they pass.

As an LGBTQ individual or couple in Maine, however, there are few things you can do to protect yourself and your partner and family from difficulties they may encounter when your life comes to an end. While filing with your city or the state as domestic partners offers your partner the benefits of inheritance, it’s not a guarantee that everything will go the way you’d like – after all, when all is said and done, you’ll be dead, and won’t be able to help your partner and family progress smoothly through the funeral and the division of your estate.

What you can do to help your family is to set up an appointment with your attorney and get your estate planning in order. There are a number of pieces to this process, including powers of attorney, advance directives, and wills. Each piece of the puzzle serves a specific role in assuring that your family will be cared for, the funeral and process after will go off without a hitch, and your wishes will be respected and honored by those who love you the most.

US Bankruptcy Court in 2 states declare DOMA inapplicable and unconstitutional

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Two months, two opinions. The US Bankruptcy Court for the Southern District of New York and the US Bankruptcy Court for the Central District of California, in two separate decisions, have held that the Defense of Marriage Act is unconstitutional, and will not hold up to judicial scrutiny. On May 4, 2011 New York declared that a joint bankruptcy filed by a legally married same-sex couple may not be dismissed solely because DOMA defines a spouse as “a person of opposite sex who is a husband or wife.” On June 13, 2011, California took this one step further by holding that, not only did DOMA not prevent a same-sex couple from jointly filing for bankruptcy, it actually “deprives [the couple] of the equal protection of the law to which they are entitled,” and “violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution.”

When you think of groundbreaking legal events, “bankruptcy court” may not be the first thing that springs to mind. These opinions, however, may open the door for more comprehensive attacks on DOMA. These opinions may eventually lead to repeal of DOMA. Only time will tell, but whatever follows in the months and years ahead, we should remember that the US Bankruptcy Court was willing to stand up for the LGBT community, and uphold the community’s constitutional rights in the face of great legal and political pressure.

Marriage – It’s about more than a commitment

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As of July 24, 2011, it will be legal for same-sex couples to marry in New York state. As a Mainer, may be tempting for you and your partner to race to the Big Apple for some fast-track nuptials. Before you buy your plane tickets or pack the car, however, there are a few things you should consider.

The state of Maine does not currently recognize same-sex marriages performed out of state. That means that when you come home after your destination wedding, whether in New York, or in Massachusetts, Connecticut, New Hampshire, or any other state that allows same-sex marriage, you will still not be considered legally wed in your home town. Beyond that, there is a provision in Maine law stating that if a couple leaves the state to get married for the purposes of evading Maine law – which is what you would be doing by going to New York for your same-sex wedding – then your marriage is void.

It may not sound like there is much difference between “void” and “not recognized.” When it comes to the law, however, words have very specific meanings, and what may not sound different can, in fact, have very difference consequences. Because you would be leaving the state for the purpose of obtaining a marriage license that would not be granted here, your marriage would probably be considered void under Maine law. This means that, even when Maine does recognize same-sex marriages from out of state, or when Maine grants marriage licenses to same-sex couples here, your marriage could be considered invalid, because it was void when it was issued.

There is still time before you head South and take the plunge into wedded bliss to consult with a lawyer. There is far more to this issue than can be covered in one blog post, and meeting with a lawyer who can sit down with you and explain all of the potential issues that can arise from an out-of-state same-sex marriage will be more than worth your time.

Discrimination under the Maine Human Rights Act

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Have you been told by a potential landlord that you were denied for housing because of your sexual orientation, gender identity, or gender expression or that it was because they did not approve of the sex of your partner or of your “lifestyle”?  Has an employer made an adverse job decision that has negatively affected you because of your sexual orientation, gender identity, or gender expression?  If so, then you might consider speaking to a lawyer about your rights and the Maine Human Rights Commission.  The Maine Human Rights Commission is a state agency that is in charge of investigating and enforcing Maine’s anti-discrimination laws, as set out in the Maine Human Right Act.  The Maine Human Rights Act covers areas ranging from employment, housing, and public accommodations to fair credit extension and educational opportunities. The Act outlines the definition of sexual orientation in the act as being actual or perceived “heterosexuality, bisexuality, homosexuality or gender identity or expression.”

Even though many of us may believe and wish to believe that discrimination against our fellow community members is lessening over the years, it is always good to know that there is a state agency that is vested with the power to hear complaints related specifically to discrimination based on our actual or perceived sexual orientation, gender identity, or expression. To learn more about the Maine Human Rights Commission and their procedures– visit their homepage – they even have an online form to submit complaints.

There are other actions you can take in addition to going through the Maine Human Rights Commission.  You may have a case under federal law or in state court.  If you believe that a discriminatory act has happened to you, you should seek the advice of counsel immediately.

New Federal Guidance on Housing Discrimination

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Earlier this month, the U.S. Department of Housing and Urban Development (“HUD”) issued guidelines about housing discrimination based on sexual orientation or gender identity. The new guidelines makes clear that HUD’s position on such discrimination is that it is prohibited under the Fair Housing Act, although the federal law does not currently specifically state that it covers sexual orientation or gender identity discrimination.

A new development in the HUD guidance is that the agency now indicates that discrimination against transgender or transsexual individuals may be considered sex discrimination under the Fair Housing Act. At least one federal court has also indicated that gender identity discrimination may be covered under laws barring sex discrimination.

Although this guidance provides a way for lawyers fight for clients who have been discriminated against on the basis of sexual orientation or gender identity, amending the Fair Housing Act to include sexual orientation or gender identity as illegal grounds for discrimination would do far more to deter such conduct.

Probate Judges must give reasons for denying name changes

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The Law Court recently returned a decision on the appeal of a name change of a transgender identified individual. The Law Court, in their decision, noted that there was nothing in the record that evidenced fraud on the part of the petitioner and remanded the case back to the Probate Court for further action. The Law Court directed the Probate Court that if the request for name change was denied, again, that the decision be in writing and with details as to the reason for the denial. No action has happened since the decision was published, but it is anticipated that an additional hearing will take place in the near future.

The reason this is interesting for transgender individuals is because some Probate Courts have requested additional information from transgender identified petitioners that are not related to the statute or case law for name changes in the State of Maine. The decision from the Law Court did not address the additional level of scrutiny that has been applied by some Probate Judges to perceived transgender petitioners, but it is anticipated that if the Probate Court denies the name change on the basis of the petitioner’s transgender status, that this will become an issue before the Law Court in the near future.

New Policy regarding Gender Change for Passports

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The State Department announced yesterday that it would be changing a long-standing policy that controlled how transgender or transsexual individuals changed the gender marker on their passports. The old policy required that such individuals have surgery before they could change the gender marker.

According to the press release on the policy, surgery will no longer be required. The new policy requires that an attending medical physician certify that the applicant has “undergone appropriate clinical treatment for gender transition.” However, regulations regarding exactly what appropriate clinical treatment may be required under the new policy have not yet been disseminated.

The policy does not allow passport officials to ask for additional medical information other than the certification.

Updated: 2:30 P.M. The guidelines are available here.

The medical certification permits a psychiatrist, internist, endocrinologist, gynecologist, or urologist to give certification. The certification must include the physician’s full name, their medical license or certificate number, the issuing state or other jurisdiction of their medical license, the Drug Enforcement Administration (DEA) registration number assigned to the physician, the address and telephone number of the physician, and must contain the following language:

(1) Language stating that he/she is the attending physician for the applicant and that he/she has a doctor/patient relationship with the applicant;

(2) Language stating the applicant has had appropriate clinical treatment for gender transition to the new gender (male or female);

(3) Language stating “I declare under penalty of perjury under the laws of the United States that the forgoing is true and correct”: and

(4) Annotate the application “gender transition” to record the reason for issuing the full validity passport in the new gender.

Presidential Memo Extending some Benefits to Same-Sex Partners

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On Tuesday, June 2, President Obama signed an Executive Memorandum that extended some health benefits to family members of federal employees involved in same-sex relationships. The effect of this memorandum is to give some benefits that are currently given to married partners of federal employees to domestic partners of federal employees.

The practical effect on you, if you are an employee of the federal government and if you and your same-sex partner are domestic partners, includes the following:

Your children may be able to get the same subsidies for child care as your counterparts with opposite sex spouses.

Your partner may be able to get some benefits that are given to family members under employee assistance programs.

Your domestic partner may qualify for portions of your federal retirement annuity if you provide for them to do so.

Your domestic partner may qualify for evacuation, relocation, travel, or other payments, under certain circumstances.

You can now take some time under the Family Medical Leave Act for the needs of your domestic partner.

Your partner may be entitled to other payments or assistance under federal law where such assistance is given to partners of married employees.

Despite these benefits extended for domestic partners of federal employees, the memorandum does not extend health coverage or other benefits that are currently given to married partners. The President indicates that legislative action is needed in the future to provide more benefits to same-sex domestic partners of federal employees.

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