Legality question

hcruzlotus

Hi everyone! My fiance and I are planning our wedding now in the case of CA  repealing Prop 8 this year (fingers crossed!). But in case that doesn't work out, how does it work getting legally married in another state? Do we have to be residents? And do the benefits still apply to us even though we will be staying in CA?

2dBride

You can get married in any state that recognizes same-sex marriage.  None of them have residency requirements to get married there.  Thus, the only question is the extent to which your home state will recognize your marriage.

In California, SB 54 mandates that all same-sex couples who get married outside of California after Proposition 8 passed will be entitled to all the rights, benefits, and obligations of marriage, except for the use of the term “marriage” to describe their relationship.  In other words, if Prop 8 gets repealed, your marriage in another state that recognizes same-sex marriage will be recognized in CA.  Even if it does not, CA will grant most of the rights of marriage to you if you are married in another state.

Jenn&Bec

My Fiance and I live in Oklahoma and will be having a ceremony in Arkansas. After speaking with some other couples we have been told we pretty much have no rights. Unless we go and create a will and then we have just a little more security than we did have before. I guess my question is so we have any other rights? Is there anything else we can do? We are planning to move to Las Vegas 4 months after the wedding and are wondering if we are entitled to anything here in Oklahoma or Las Vegas.

One other question I also had was we are issuing for a name change. Is there any law against both of us changing our names (We plan to hyphen our last names)  if our relationship is not recognized in the state of Oklahoma?

Thank You.

2dBride

Jenn&Bec, your situation is quite different from hcruzlotus's, for a couple of reasons:

• * Arkansas is not one of the states the recognizes same-sex marriage.  If your wedding is in Arkansas, it will not have any legal effect anywhere.
• * Arkansas, Oklahoma, and Nevada all have constitutional prohibitions on recognizing same-sex marriage.  Thus, even if you went to a state that had legal same-sex marriage to be married, it would not be recognized by any of those states. This is different from California, which provides at least some recognition of same-sex marriages, except for referring to them as "marriage."

In your situation, you really have two alternatives.  The first is simply to have a ceremony that is not legally recognized, and wait to do anything else until and unless you ever live in a state in which same-sex marriage is recognized.

The second is to go to a state in which same-sex marriage is recognized, and have a ceremony there.  The advantage of doing so is that if and when you live in a state in which same-sex marriage is recognized, or if the federal Defense of Marriage Act is repealed, your marriage will be retroactive to the date on which it originally took place.  If your ceremony is not in a state that recognizes same-sex marriage, it will never be recognized.

The down side of getting married in a state that recognizes same-sex marriage is that a) it doesn't provide you with any immediate legal rights, except for the right to change your names on your Social Security card and passport, and b) it may be impossible ever to get divorced.  Divorce is governed by the laws of your home state, and if it does not recognize same-sex marriage, it will not grant a same-sex divorce.

If you decide not to have a legal marriage, you can still change your names.  You would just have to do it through the name change procedures of your home state, just like someone who wants a name change without a marriage.

In terms of protecting your rights, you really need to talk to a lawyer.  A will would help, as would a living will and a health care power of attorney.  You might also need a cohabitation contract.  And you need to make sure that all property ownership (and custody arrangements, if you have children) are set up in such a way as to give you the maximum possible protection.  Of course, none of this will be as good as the rights you would get if your home state and the federal government recognized your marriage.

pokeycip

I'd like to add to what 2dBride said.  If, for example, you got married in MA.  One of you would have to move there for long enough to establish residencey before you could get a divorce there.  I suppose you could move to any other state that recognizes the marriage, establish residency, and then get a divorce. 

Changing your names without the benefit of a marriage license is considerably more difficult and more expensive depending on where you live. 

You can find more info about how to protect yourselves legally at http://www.nolo.com/legal-encyclopedia/lesbian-gay-couples/
They have info and tools that can help you create legal documents without a lawyer.

hcruzlotus

Thank you everyone for your help. Our wedding is now gonna be as sson as we can get the money for it! AH! I'm so excited!