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Marriage Primer

Marriage Primer


Nobody ever said marriage was easy, and in the wake of the California Supreme Court's May 15 decision to legalize marriage for same-sex couples, there arises a host of new legal questions that need answers. We went to Lambda Legal director Jon Davidson for the scoop and found out some surprising benefits (New Yorkers, you may want to book a trip out west) and pitfalls (divorce complications) related to this historic decision.

What does this mean for people who already have domestic partnerships? Are partnerships nullified, or should gay people still apply for them when they get married? The ruling is scheduled to go into effect June 16. At that point people will be able to get married if they want, but if they're in a registered domestic partnership in the state of California already, they'll still be in a domestic partnership. Now, people in a domestic partnership can get married -- as long as they marry the same person they're in the domestic partnership with! [Laughs] The domestic partnership is not converted into a marriage; it's a separate status.

So they'd effectively be keeping that status but adding marriage? Yes -- that's why it might be a good idea [to have both]. For example, some states like Oregon, Vermont, and a number of others that have domestic partnerships and civil unions will not honor a marriage from another jurisdiction -- but they will respect and honor a domestic partnership from another jurisdiction. It might not be a bad idea to have a marriage and a domestic partnership if you're traveling to one of those states.

How does this affect people who live in other states but want to marry in California? There are no residency requirements to get married in California, so people from other states can come and get married here. The problem they may experience is that if the couple breaks up, there is a residency requirement in California to divorce. You have to live in California for six months before you can file for a divorce.

Uh-oh! How might that complicate things? In some states that may not recognize the marriage, it may not be possible to get divorced where they live.

So they'd have to move back here to qualify for the divorce? Correct. We've seen this happen in Canada. Canada has no residency requirements to marry [some jurisdictions impose a short waiting period, however], but it has a one-year residency requirement for divorce. So there are gay people living in other jurisdictions who haven't been able to get a divorce.

That sounds like a romantic comedy waiting to happen. Some people might say, "Well, it doesn't really matter because [the other jurisdictions] don't honor your marriage, so what?" But it's problematic from a couple points of view. First of all, if you wanted to marry somebody else at some point, you wouldn't be able to do that without divorcing the person you were previously married to.

And that person still retains certain marital rights, correct? Well, let me give you an example. A couple from Indiana comes to California to get married and then goes back to Indiana, which doesn't treat them as married. They split up, but they're not able to get a divorce from California unless one of them moves here. They might say, "So what," but say one of them comes back to California, or is traveling here on vacation or business. Let's say they get in a car accident and they're in the hospital. Since they married in California, the person who used to be their spouse is the person making medical decisions for them, if they're incapacitated.

Yikes. The person you broke up with now gets to make medical decisions for you if you're in a coma? I don't think that's what most people would want! [Laughs]

Of course, there are no such stipulations for straight couples. They can get divorced wherever they want, right? That's because their marriages are honored everywhere.

Could a California couple divorce in Massachusetts, since that state also has legalized gay marriage? Well, Massachusetts also has a residency requirement to divorce. Almost all states do. It used to be that you could go to Nevada to obtain a quickie divorce, but even then you had to establish residency for a couple weeks. The [lesbian-themed] movie Desert Hearts is about a woman in the late '50s who went to Reno, Nev., and lived there for a couple weeks to get a divorce. [Nevada now has a six weeks residency requirement for divorce.]

But even so, for all intents and purposes, Massachusetts will still recognize a California marriage in the exact same way, right? And those are the two states in the U.S. that will? There have also been several rulings in New York. Even though you can't get married there, New York will honor out-of-state marriages. There have been several lawsuits already in New York -- including one divorce -- of couples married in Canada. New York doesn't have a [Defense of Marriage Act], but it has principles that honor all marriages that were valid where they were entered, except for bigamists, polygamists, or closely incestuous marriages.

So you're saying that a gay couple from New York could go to California and have that marriage recognized by their home state? California is just like Canada right now; get married and New York will treat them as married.

Married gay couples in California have gained a whole bunch of state rights, but what federal rights do they still not have? Well, we still don't have any federal rights like federal social security, veterans' benefits, federal tax treatment as if you were married, certain tax exemptions...none of those are available. There are 1,138 federal laws that treat people differently if they're married. Because of the federal Defense of Marriage Act, gay couples that get married in California will be treated as single for all federal law purposes.

How does this affect filing taxes? Generally, because state returns take certain figures off the federal returns, you'll have to prepare two federal returns: one that you file as single, the other you calculate as married. Now, you don't file that [married] one, but you use those figures off the married form to figure out your state tax. So it requires more work, but that's always been true of domestic partners in California. It won't be a change for the people who've already registered as domestic partners.

Does this change adoption rights for gay couples at all? That's totally separate from marriage. A single person can adopt -- except in Florida, which doesn't allow gay people to adopt. In other jurisdictions same-sex couples can jointly adopt at the same time, or they can do what's called a second-parent adoption, where one person adopts and the second person adopts after that. But gay marriage in California is irrelevant to adoption, which is a legal arrangement between a parent and child that is not dependent on the relationship between the parents.

People won't be able to get married until 30 days after the ruling. Why is that? In a normal situation, decisions of the California Supreme Court are not final until 30 days after they've been decided -- so that would be June 16. In that period of time, the court could take further action with respect to the decision. They could modify it in some way; they could rehear the case; they could make some changes. The decision isn't final yet, so the government isn't required to take any action until it is. What is going on at the county level -- and these are the counties that give out marriage licenses -- is that they're going to wait for this final decision, in part because they have to get instruction from the State Registrar of Vital Statistics, who will tell them what they're supposed to do.

Should we be at all nervous about the fact that there's a 30-day period during which this decision could change? I think that it's incredibly unlikely that the court will change its mind. [The judges] had plenty of time to consider it and they wrote very detailed opinions. There was an interview in the Los Angeles Times with Chief Justice Ronald George about how carefully he considered what he would do. But the government doesn't have to comply yet. Gov. Schwarzenegger said the state will comply once the decision is final.

But if a request to rehear this decision is filed, that's going to extend the waiting period to 60 days, not 30, right? The court could extend it, but they don't have to extend it. They could deny the hearing before the expiration of the 30 days. We don't think it's very likely that they will extend the finality of the decision.

Who could be expected to file a request to rehear? Well, the people that have threatened to file it are the Alliance Defense Fund and Liberty Counsel, who originally sued to set aside the San Francisco marriages. The court found that they actually shouldn't be treated as parties to the litigation, so it's not actually clear that they have the ability to seek a rehearing. So they've said they're going to try and do that, but they haven't done it yet. Again, we don't think it's very likely that the court will grant a rehearing, or that it will extend the time in which the decision will become final. [As of press time, Mathew Staver of the Liberty Counsel and Campaign for California Families, had threatened to file a motion to extend the waiting period until the November ballot.]

Were anything to happen regarding an extension period, would we only find out about it on June 16, or would we know about it sooner? We could know about it sooner. It depends on when these other groups seek a rehearing -- the court could deny the rehearing right away.

Are churches now required to marry us? Not at all. Neither religious groups nor clergy members are required to marry same-sex couples any more than they're required to marry interfaith couples or couples who are not part of their congregations. For example, if you're Catholic, you can't get married if you're divorced. Orthodox Jews can't get a rabbi to marry them to someone who is not Jewish. There is absolute freedom of religion for religious groups to decide whom to marry or what marriages to honor for religious purposes.

One last practical question: Where do you get a marriage license? What you need to do is get a license from the office of the registrar recorder or county clerk. They're called different things in different counties, but it's a county office. You can get that application in advance from most county websites, and you can either complete it in advance or take it to the county clerk's office. Both of the people in the relationship who want to marry need to come in person to the county office, and they need to present a government-issued picture ID to prove that they're over 18, or, if they're under 18, they either need to have parental consent or go before a court. They have to pay a license fee, which varies by county but is generally under $100, and then the license is valid for 90 days. You then must have the marriage officiated by someone -- either a judge, a court commissioner, a deputy commissioner, or someone sworn in to do marriages.

Like Gavin Newsom? Yes, in San Francisco the mayor was sworn in to perform marriages. So you do all those things, fill out your application, show your picture ID, and pay your fee.

And then? And then you have your wedding!

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