Just returned from the 2013 Lavender Law in San Francisco. With all the changes occurring since the U.S. Supreme Court issued its decision in United States v. Windsor, there was a great deal to learn and discuss.
Here are some insights from the conference:
1. Marriage: Don't rush into a marriage. It is important to consider why you want to get married and what effect marriage will have on your life, assets, taxes and other issues. Discuss the financial ramifications with your attorney, financial advisor and accountant. Some couples that rushed into marriage or got married as a political statement have discovered that move was not in their best interests.
One major concern is you may find it is easy to get married and difficult to get unmarried. Most states require you to live in the state for a period of time before being able to get a divorce. Vermont, D.C., Minnesota, Delaware and California are states that do not have residency requirements for couples who married in those states but live in states where they cannot get divorced. Vermont has an additional requirement--the couple cannot have minor children of the marriage.
In any event, take your time before jumping into anything.
Here are some insights from the conference:
1. Marriage: Don't rush into a marriage. It is important to consider why you want to get married and what effect marriage will have on your life, assets, taxes and other issues. Discuss the financial ramifications with your attorney, financial advisor and accountant. Some couples that rushed into marriage or got married as a political statement have discovered that move was not in their best interests.
One major concern is you may find it is easy to get married and difficult to get unmarried. Most states require you to live in the state for a period of time before being able to get a divorce. Vermont, D.C., Minnesota, Delaware and California are states that do not have residency requirements for couples who married in those states but live in states where they cannot get divorced. Vermont has an additional requirement--the couple cannot have minor children of the marriage.
In any event, take your time before jumping into anything.
2. Federal Benefits: Lesbian and gay federal employees that are legally married may add their spouses to their health insurance. The window of opportunity that immediately followed the Windsor decision closed on August 26. This means that any federal employee who is already married will need to wait until the next open enrollment period. It is best to check with your agency's human resource department.
3. DOMA: The Supreme Court's decision in Windsor did NOT declare DOMA in its entirety unconstitutional. The decision only affects section 3 of DOMA--that applies to the federal government. States continue to be allowed to deny same-sex couples marriage equality rights. There are 37 states that do not recognize same-sex marriage. This includes those states, like New Jersey, Oregon and Colorado, that recognize Civil Unions and Domestic Partnerships. The Windsor decision does not require the federal government to recognize Civil Unions and Domestic Partnerships.
4. Internal Revenue Service: The IRS has not yet issued its guidelines on whether it will recognize the state of celebration or state of residence of federal income tax purposes. If the IRS recognizes the state of celebration, then married same-sex couples will be able to file joint federal tax returns regardless of where they live. HOWEVER, you will still be required to comply with your state tax laws and, if living in a state that does not recognize your marriage, you will continue to file as an unmarried individual.
You may want to attach a statement concerning your marriage to your state tax return. This can be used as evidence of your marriage and put the state on notice that you are prevented from filing properly in the state.
5. Social Security: The Social Security Administration is required to use a claimants state of residence to determine the validity of a marriage and to define "spouse". The Social Security statute contains language to that effect. At this point, no one knows if Congress will enact legislation to change that--given Congress's inability to do anything constructive, it is unlikely such a change will take place anytime soon.
However, if you believe you or your children are entitled to benefits on your spouse's record, file the claim. If you are denied, file an appeal. The benefits you are seeking are not retroactive. If a claim is pending when eligibility is determined, you will be entitled to benefits back to the time of the initial claim.
6. Children: I know it is annoying, but you should pursue an adoption even if you live in a state that recognizes your marriage and any children born during that marriage. What a state like Massachusetts recognizes will not be the same as Ohio. An adoption, entered by a court, will give you a court order that will be recognized in all 50 states.
So, this is just a smidgen of what's going on right now. There are many unanswered questions and having a lawyer who has experience working with LGBT clients can be helpful. There are lawsuits pending in several states that challenge state constitutional and statutory bans on same-sex marriage. But, lawsuits take time so there will be no quick fix. Still, the changes we've seen so far exceed where anyone thought we'd be. And, remember, patience is a virtue--a frustrating one--but a virtue nonetheless.
3. DOMA: The Supreme Court's decision in Windsor did NOT declare DOMA in its entirety unconstitutional. The decision only affects section 3 of DOMA--that applies to the federal government. States continue to be allowed to deny same-sex couples marriage equality rights. There are 37 states that do not recognize same-sex marriage. This includes those states, like New Jersey, Oregon and Colorado, that recognize Civil Unions and Domestic Partnerships. The Windsor decision does not require the federal government to recognize Civil Unions and Domestic Partnerships.
4. Internal Revenue Service: The IRS has not yet issued its guidelines on whether it will recognize the state of celebration or state of residence of federal income tax purposes. If the IRS recognizes the state of celebration, then married same-sex couples will be able to file joint federal tax returns regardless of where they live. HOWEVER, you will still be required to comply with your state tax laws and, if living in a state that does not recognize your marriage, you will continue to file as an unmarried individual.
You may want to attach a statement concerning your marriage to your state tax return. This can be used as evidence of your marriage and put the state on notice that you are prevented from filing properly in the state.
5. Social Security: The Social Security Administration is required to use a claimants state of residence to determine the validity of a marriage and to define "spouse". The Social Security statute contains language to that effect. At this point, no one knows if Congress will enact legislation to change that--given Congress's inability to do anything constructive, it is unlikely such a change will take place anytime soon.
However, if you believe you or your children are entitled to benefits on your spouse's record, file the claim. If you are denied, file an appeal. The benefits you are seeking are not retroactive. If a claim is pending when eligibility is determined, you will be entitled to benefits back to the time of the initial claim.
6. Children: I know it is annoying, but you should pursue an adoption even if you live in a state that recognizes your marriage and any children born during that marriage. What a state like Massachusetts recognizes will not be the same as Ohio. An adoption, entered by a court, will give you a court order that will be recognized in all 50 states.
So, this is just a smidgen of what's going on right now. There are many unanswered questions and having a lawyer who has experience working with LGBT clients can be helpful. There are lawsuits pending in several states that challenge state constitutional and statutory bans on same-sex marriage. But, lawsuits take time so there will be no quick fix. Still, the changes we've seen so far exceed where anyone thought we'd be. And, remember, patience is a virtue--a frustrating one--but a virtue nonetheless.
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