Questions Abound Around Same-Sex I Dos
Questions Abound Around Same-Sex 'I Dos'
Lawyers Sort Out Answers to Particularities of State's Marriage Law
By Laura Ernde
Daily Journal Staff Writer
SAN FRANCISCO - Deb Wald has some news for Wisconsin's lesbian and gay couples who are thinking of coming to California to get hitched: You could face up to nine months in prison and a $10,000 fine.
Under Wisconsin law, anyone who leaves the state to enter into a marriage that is prohibited in "America's Dairyland" is committing a crime. The antiquated law was designed to prevent underage couples from going to other states to wed.
"We obviously don't anticipate that anybody will be prosecuted, but we feel people should know about it," said Wald, a San Francisco attorney.
The oddity is just one of many novel legal issues that have cropped up in the wake of May's California Supreme Court decision allowing same-sex marriage here.
Attorneys who advise same-sex couples said they have been inundated with questions about how the law affects their particular situation in terms of health insurance, estate planning and taxes.
Most of the confusion can be traced to the fact that most states and the federal government do not recognize same-sex marriage, creating a hodgepodge of different rules.
Complicating matters further is the evolving nature of laws covering same-sex unions, which in California began with domestic partnership legislation in 1999.
"We're trying to anticipate as much as we can," said Wald, who chairs the National Family Law Advisory Council for the National Center for Lesbian Rights and has been writing about same-sex marriage issues on her blog, debwald.blogspot.com.
Domestic partners are asking whether they should end their domestic partner registration when they get married.
The answer is generally, no, because it's unclear whether the marriage would continue to be valid if a voter initiative banning same-sex marriage passes in November. For the same reason, some attorneys are recommending same-sex couples who are entering into a union for the first time complete their marriage and domestic partnership in the same day.
Gay couples who married elsewhere - such as Massachusetts, Canada or Spain, where it already was legal - are asking whether they should remarry in California.
That answer largely depends on whether the first marriage was valid, Wald said.
Valid marriages from other jurisdictions are recognized in California as of June 16, the date the Supreme Court decision took effect, although their date of marriage remains the same.
Marriages that might be considered invalid include some from Massachusetts because of the requirement that both parties be legal residents of that state.
"There are a lot of same-sex couples walking around with legally dubious marriages," Wald said.
Yet family lawyers generally discourage people from getting married multiple times because it creates confusion about the length of the marriage.
"That's the stickiest issue we're grappling with. We're really taking it on a case-by-case basis," she said.
Same-sex couples are also consulting lawyers to protect their financial arrangements in marriage.
One person they have been turning to is Virginia Palmer, a partner in the trusts and estates group at the Oakland-based Fitzgerald Abbott & Beardsley.
Palmer said couples have come to her worried that a marriage will make them ineligible for certain kinds of federal benefits.
"You have to look at individual cases," she said. "People with disabilities you have to be especially cautious with."
Another issue concerns pre-registration agreements, similar to prenuptial agreements, that some couples signed before they registered as domestic partners.
Couples who are getting married should consider making a short addendum to the agreement noting that they intend it to remain valid.
"You don't want to have your estate plan undone because of that change in status," Palmer said.
Wald said she and other attorneys are preparing such documents for free for couples who agree to donate the money they would have spent on legal fees toward defeating the November initiative.
Attorneys say they expect to see additional legal issues arise as people run into unforeseen snags along the way.
"These are things people aren't thinking about when they get married," Wald said.
Family and estate planning specialists aren't the only lawyers fielding questions as a result of the same-sex marriage ruling.
Employers nationwide are asking whether they need to extend benefits to same-sex spouses who were married in California but may live anywhere in the nation, said Denise M. Visconti, an associate in Littler Mendelson's San Diego office.
Generally, employers are allowed to extend benefits to same-sex couples regardless of the law in their state, but aren't required to in states where same-sex marriage is not legal or recognized.
"For employers' part they are not saying, 'Do we absolutely have to?'" Visconti said. "They're saying should we, is this a good idea?"
If they decide to offer the benefit, employers then have to figure out whether they need to tax a benefit that would otherwise have been provided tax-free to an opposite-sex spouse.
The Federal Defense of Marriage Act passed by Congress in 1996 prohibits the federal government from recognizing same-sex marriages for any purpose, including benefits and tax breaks.
The same rule applies on the state level in the 41 states that have approved statutes banning same-sex marriage, according to Stateline.org, a nonprofit group that reports on trends and issues in state politics.
In addition, 27 states have approved constitutional amendments prohibiting same-sex marriage much like the initiative pending in California in November.
One question none of the attorneys can answer is whether the initiative, if passed, would nullify the same-sex marriages that took place between June 16 and the election.
"It's probably better left to the constitutional scholars," Visconti said.
laura_ernde@dailyjournal.
Copyright 2009 Daily Journal Corp. Posted with permission.
