Must my child be a bastard?!

October 14, 2008 8:19 AM

My girlfriend and I live in a state where gay marriage is not legal. We'd get married if we could. What would be the implications for us (and potentially a future child) if we got an out-of-state gay marriage?

We're fairly certain we would simply continue to file our state and federal taxes as separate, single individuals. (She owns our home.)

We are planning to make a baby in the next year or two, and we're also considering moving in a few years to a city in another state that is much more hospitable to our kind but also doesn't have legal gay marriage. We're currently in Kansas City, Missouri and might move to Chicago.

posted by palegirl to Law & Government (10 answers total)

The marriage will not carry any legal weight in your home state, so you would have to take other actions (i.e. drawing up legal papers) to try to protect things like your access in a medical emergency, power of attorney, community property etc. It would probably cause problems if you tried to establish your legal married status in a context like paying your taxes. As far as I know no couple has been subjected to legal actions for getting a marriage in another state that is not legally recognized in their own (the way that interracial couples were sometimes subjected to legal action in the past, the sort of thing that eventually led to interracial marriage prohibitions being overturned in the Supreme Court). But there is that precedent. If (for example) the Supreme Court were to judge prohibitions of same-sex marriage to be constitutional then a preexisting marriage would likely be considered valid.
posted by nanojath at 9:24 AM on October 14, 2008

Divorce. If you wanted to remarry another woman at a later time you might have to go get a divorce in the state where you were married.

Talk to a lawyer.
posted by bilabial at 9:51 AM on October 14, 2008

For all intents and purposes, your marriage in CA/MA/CT will not exist elsewhere; it will be as meaningless as having someone wave their hands over your head and saying "By the power vested in me by Zooka-Kooka, Lord of Magik, you are married!"

If you don't intend to reside in a gay-marriage-legal state, until and unless the legal situation in the US as a whole or Illinois/Missouri specifically changes, getting legally married will have basically no effect at all, and definitely nothing you could rely on.
posted by Tomorrowful at 10:25 AM on October 14, 2008

palegirl, long story short, unless you're ready to go to the Supreme Court, the fact that you may get married in one state and have that marriage recognized in that state has no legal bearing in your home state at this time. This is a really good example of something to talk to a lawyer about, and by that I mean active expert in gay/lesbian family law, lavender-lovin', queer-themselves lawyer. Look in your local G/L Yellow pages or in your local gay paper for a lawyer who specializes in these issues.

Kansas is most assuredly not the state you want to end up defending your family in court. In Texas we paid about $4500 total for all the documents that hold us together in the eyes of the law. It sucks that we have to pay a rainbow tax to be legally considered a family, but that's life right now. Do NOT have a child without doing all of the legally responsible things, like wills and POAs and adoptive parenting rights for the non-bio mom. $4500 will seem cheap compared to the pain you guys might go through if you don't have it.
posted by pomegranate at 10:39 AM on October 14, 2008

Response by poster: Oh, yeah, we know it wouldn't get us anywhere, we're just kinda afraid it could actually complicate our lives for some reason or another.

We already gave each other rings and promised to love each other forever (or until we lose the rings, ha!) and realize that a CA/MA/CT marriage would be roughly equivalent to that for as long as we're living in the midwest.
posted by palegirl at 10:42 AM on October 14, 2008

Oh and in reference to the title of your question, my daughter has no name under "father" in her birth certif, and then my wife's adoption papers for her are stapled to it. Somehow seems apropos that our family is held together with a very tiny piece of metal.
posted by pomegranate at 10:43 AM on October 14, 2008

Yeah, no effect in any other state.

But wherever you live or move to, do have your wills, powers of attorney, all that stuff updated and notarized. You'll find more info here.
posted by rtha at 11:54 AM on October 14, 2008

Oh sorry I just reread, you're on the MO side - but still - not optimal for friendly judges.
posted by pomegranate at 12:06 PM on October 14, 2008

Hm. If your child was born here in Ontario, Canada, you could (as I understand it -- check with a lawyer) both be on the birth certificate as parents (assuming one of you is doing the giving birth part). Perhaps your state of residence might not recognize your marriage, but could they get out of recognizing the parental status indicated on the birth certificate? (I have no idea -- lawyer required).
posted by winston at 1:45 PM on October 14, 2008

My wife and I flew out to California and got married in July. Flew back to Arkansas and didn't change a thing but a piece of paper on the wall. But we're married. Other than divorce or moving to a state that recognizes gay marriage, it will not affect your life from a legal standpoint.
posted by CwgrlUp at 7:59 PM on October 14, 2008