We had the party, do we want to sign the papers?
March 19, 2010 6:37 PM   Subscribe

How do we figure out the pros/cons of entering a same-sex marriage in various jurisdictions? Do we want to talk with a lawyer?

So, in a long term relationship, had a wedding, now we're thinking about getting legally married. I would like to know, on a fairly nuts and bolts level, what actual impact this would have, since we're in a jurisdiction (IL) that doesn't recognize it, and especially any difference between MA vs DC vs IA etc.

Is the a good source for this kind of information? Is this the kind of thing one should talk to a lawyer or other professional about? If a lawyer, what kind and how to pick one? To an order of magnitude, how much would one expect to pay for this kind of service?
posted by PMdixon to Law & Government (13 answers total) 3 users marked this as a favorite
IANAL but I am gay-married in California. This is also where I got gay-married, and am still considered as such, since we got in during the window of legality in 2008 before prop 8 passed. (We were also gay-married in Canada but I'm not sure that has any bearing on anything, unless we move to Canada.)

Since IL doesn't recognize it, the effect will be nil. In the eyes of the state of Illinois, you will be just as single as you were before your wedding in DC/IA/MA. In California it's more complicated, because we have to file as married for our state taxes, but single for our federal ones. It's a pain but TurboTax seems to have it all figured out.

Especially because IL doesn't recognize it, you will still need to do wills and powers-of-attorney and all that stuff, if you haven't already.
posted by rtha at 6:59 PM on March 19, 2010

What is your ultimate goal?

Are you planning on moving to one of these locations so you can be married legally? Or are you hoping that IL will start to recognize marriages from other states? Or is it more about making a statement to the world?

(I am proud to already live in one of the homomarriagephobia free states)
posted by mrgoldenbrown at 7:05 PM on March 19, 2010

Best answer: In the course of buying a house in Washington, the mortgage company gave us a little static with putting our home into "community property", as we are registered domestic partners, which is a status they were not completely prepared for in their paperwork. Joint ownership of the home is important, in case one of us is incapacitated, dies, etc. or, god forbid, we go through whatever the separate-but-equal legal equivalent of divorce is.

So depending on what you do together, make sure that any marriage-related details cover you, if you're in a state that recognizes your rights. Whether or not that's the case, talk to a GLBT-friendly estate lawyer about wills and power-of-attorney. Your local alternative newspapers will often carry ads for lawyers who specialize in navigating local- and state-specific mine fields.

Because of DOMA, any federal laws or procedures based on marital status will not apply to you, no matter where in the US you live. For example, if you have a retirement account and you're straight-married, you might have to get your spouse to sign off on any significant changes to it. Not if you're gay-married or partnered, however. Likewise, you can't file federal taxes jointly. These may or may not be benefits, but it can complicate decision-making.

Of course, no state laws will apply to you in the same case, if your state (Illinois) doesn't recognize the existence of same-sex couples. Otherwise, if you're married in a progressive state or partnered in a state that has gone that route, such as Washington, any laws or policies that apply to or benefit married couples can apply for you, too (for now, at least).

Oddly enough, some states, like New York, will recognize your marriage while not allowing that marriage to be performed in that state. The relevant Wikipedia entry is a good read for the overall state of marriage rights.
posted by Blazecock Pileon at 7:08 PM on March 19, 2010

Best answer: Your question suggests to me that you have not already engaged a lawyer to to set up contractual agreements such as wills, property deeds and medical directives (forgive me if I'm wrong). Find a lawyer via local gay papers or other community sources and get that squared away first. This will probably cost a few hundred but is money well spent. Deposit copies of the papers with your medical provider and scan them and send them to yourself so that you can access them when away from home. Put the originals in a safe deposit box. You can then decide whether to marry in another jurisdiction. Keep in mind that should you ever need to divorce, you may need to establish residency in that jurisdiction to do so. I am a citizen of the United States who chose to be married in Canada but have a high degree of confidence that divorce will not be an issue.
posted by Morrigan at 7:26 PM on March 19, 2010

Response by poster: Hey folks,

Thanks for the feedback, and to clear some things up:

We do have wills/PoA/Medical PoA drafted, though I probably should have a better idea which drawer they're living in, and the mention of copies/safe deposit boxes/etc is a good one. Neither of us own any property worth mentioning (my most valuable possession's a laptop, his is his library).

I entirely realize that IL state gov will recognize such a marriage to an extent of zero. Mostly I'm asking because of this paranoia that it will somehow come back to bite me/us/him in the ass in some unanticipated way, and since we'd get roughly zero of the benefits, it would be unfortunate to get hit by any drawbacks. Community property is one of the things on my mind, actually, although since as far as I know none of the states were SSM is currently legal are community property states it's a purely theoretical concern, but a good example of potential unthoughtof entanglements.

As for why do it: On a basic level, because entities that aren't state/fed governments might care, ie insurance/employers/(eventually) adoption agencies. I figure eventually we will live in a jurisdiction that does care, either by change in local laws or a physical move, so that's a factor as well.
posted by PMdixon at 7:57 PM on March 19, 2010

Your insurers will treat you under the laws of the state you're employed in. (I looked into this a little.) So in IL you're out of luck. The other problem is that many jurisdictions (excluding MA and DC) require residency, so your selection is more limited than you think. Ultimately the legal impact is 0 but the hassle is significant. I'd wait until IL recognizes out-of-state unions or you live in a state that does.

Some Illinois cities (e.g. Urbana) have a local domestic partner registry. Again, legal impact ~0 but it might be more relevant.
posted by zvs at 9:39 PM on March 19, 2010

Perhaps a little off-topic, but if you do decide to come to DC...
posted by MrMoonPie at 7:51 AM on March 20, 2010

Of the three you mention, Iowa is probably most likely to have a Prop 8 style delegalization if the theocrats out west have their way (though Congress can always overrule DC on its internal matters if it really wants to). If that happens, the legality of your marriage might come in to question, even in Iowa. I hope you'll come to Iowa, though. The more people see same-sex couples being happily married, the more they'll realize it's a silly thing to oppose.
posted by the christopher hundreds at 8:54 AM on March 20, 2010

You don't need to be a resident of Iowa to be married here either.
posted by the christopher hundreds at 8:59 AM on March 20, 2010

FWIW, Iowa tax filing status is based upon the definition of "married" under the federal IRS rules, so even same-sex couples married in Iowa and residing in Iowa cannot file either their state or federal income tax returns under "married filing jointly" or "married filing separately." I practice family law here in Iowa and it's likely that there will be some court challenges to this (and other similar state/federal anomalies) soon. Iowa income tax returns are due May 1st, so we're not yet to the deadline. (disclaimer: IANYL).

I do, however, disagree (IMHO) that Iowa is going to have a prop-8 style delegalization. We don't have a Proposition system here in Iowa. To change the Varnum ruling holding Iowa's statutory ban on same-sex marriage unconstitutional, it would take a state constitutional amendment. I won't go into the gory details of how that works, but suffice it to say that they (the theocrats) would have had to have started that process in this year's legislative session for it to come up on the Iowa ballot in 2012 at the earliest. That didn't happen, so now it's going to be 2014 at the very earliest. By then Obama's health care reform will have turned us all into godless, pot-smoking, communist Trabant-driving drones anyhow, so same-sex marriage won't be an issue of concern. /sarcasm/ :)
posted by webhund at 7:39 PM on March 20, 2010

Response by poster: Thanks folks. My main concern was that despite getting no (legal) benefits, we'd end up getting hit by some (legal) downside, and that seems to not be the case.
posted by PMdixon at 7:36 AM on March 21, 2010

I won't go into the gory details of how that works, but suffice it to say that they (the theocrats) would have had to have started that process in this year's legislative session for it to come up on the Iowa ballot in 2012 at the earliest. That didn't happen, so now it's going to be 2014 at the very earliest.

You forget that every 10 years the ballot asks whether or not Iowans want to have a constitutional convention. That question will be on the ballot this year. The anti-gay forces are already at work rallying their confederates to force a convention where they would attempt to amend the constitution to ban gay marriage.

There are enough interests concerned with the Pandora's Box quality of the process (everything is up for revision at that point, even all the ag giveaways) that it's not likely to happen. Even the professional fundy I know from a previous life thinks the odds are less than 25%, but it remains a possibility.
posted by the christopher hundreds at 1:49 PM on March 21, 2010

That's a good point, t_c_hundreds. It's interesting that the 10-year ballot question isn't getting much media attention here yet. I agree with you re. the "Pandora's Box" nature of the process - the social fundies aren't going to get a whole lot of energetic support from the rest of the conservative base when ag and other pocketbook interests may be put at risk in the process.
posted by webhund at 10:39 AM on March 24, 2010

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