Posts tagged DOMA
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.
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.