I joined in the chorus of joy over the landmark Supreme Court rulings in favor of marriage equality earlier this year. But at the same time, it’s my sense that insufficient attention has been paid to the really important question that follows from the gutting of the Defense of Marriage Act: whether marriage is right for you and your partner. Being able to access federal benefits can indeed provide a justifiable motivation for marrying — and having access to marriage rather than the second-class status of domestic partnership or civil union (in California, and now in New Jersey as well) is similarly compelling. But remember, straight folks have had the right to marry and obtain federal benefits for centuries, and that hasn’t meant that every straight couple should be getting married. Indeed, if the right to marry meant marriage was right for everyone, the heterosexual divorce rate wouldn’t be so high!
Figuring out whether marriage is right for the two of you involves a multilayered analysis, integrating the marital rules of money and property, the public benefits (and sometimes burdens) of being recognized as a married couple, the impact of marriage on your family (and especially your kids, if you are raising children), and the interpersonal emotional dynamic of the marriage decision. Each couple has to grapple with unique needs and concerns, but there are a few key issues that regularly arise for nearly every couple.
Marital property rules: Each state imposes its own financial rules on married couples, many of which derive from traditional heteronormative notions of family life (i.e. the working husband and the stay-at-home-wife). Assets acquired after marriage are considered jointly owned regardless of who earned them, and debts are equally shared. Premarital and inherited assets are generally treated as separate, and if there’s a dissolution, the local family court adjudicates any property disputes. And if one spouse’s income is higher than the other’s, alimony may be ordered, regardless of who initiated the dissolution. However, couples have the option of contracting out of some of these rules, but it’s not a simple process. Signing a premarital agreement requires a cleary focus of mind on some tough issues, a fair amount of advance planning, and a willingness to spend a few thousand dollars on lawyers.
Public benefits and recognition: Much of the political focus on marriage equality has centered on access to public benefits, and for good reason. For some it’s a matter of a green card, and for others it means affordable health insurance. The benefits are especially valuable for couples in which one partner is a low earner or stay-at-home spouse, as they can access Social Security benefits upon retirement or the higher-earning partner’s death and a host of Medicaid and other insurance protections. Be careful, however: If one of you is receiving public benefits (such as low-cost HIV drugs), getting married to a high-earning spouse can disqualify you from receiving those benefits.
The social impact of marriage: While this is not really a legal matter, it’s important to be cognizant of how the cultural patterns of marriage and societal acceptance are likely to affect you and your family — mostly for the good, but not in every instance. Studies and anecdotal evidence have consistently shown that being married conveys a message of commitment, conventionality, and cohesion that generates emotional and practical support from family members, coworkers, and friends. This is especially true for your kids, who are likely to feel “in sync” with the surrounding social environment. At the same time, for some couples it’s a structure that is unduly confining.
And as for the emotional and personal dimensions? Those are for you to explore — and no lawyer should presume to give advice in this territory!
FREDERICK HERTZ is an attorney and mediator based in the San Francisco Bay area and author of Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions.