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Thinking of Getting Married in Massachusetts?
November 25, 2003
Questions & Answers for Same-Sex Couples Considering Tying the Knot
Can same-sex couples get married now in Massachusetts?
No. The court’s ruling won’t go into effect until May 18, 2004, 180 days after the decision.
Do we need a marriage license?
Yes. Both people must apply in person to any city or community clerk within the state. There is a three-day waiting period between the date of the application and the date the license is issued. Weekends and holidays are included in the three-day period, but the day the application is made is not. (If you apply on Friday, the license will be issued on Monday.)
What’s the age requirement?
Both people must be at least 18. You may be required to show a birth certificate as proof.
Is a medical certificate required?
Yes, for both parties. The certificate, which must be signed by a doctor, must state that the applicant has been examined and found free of communicable syphilis. The certificate must also say that the physician talked to the applicant about AIDS and that he or she offered all women applicants a voluntary test for susceptibility to rubella. Doctors from out of state can complete the Massachusetts medical certificates. The medical certificate form is available at www.state.ma.us/dph/cdc/std/divstd.htm or by contacting the Bureau of Communicable Disease Control, Department of Public Health, 305 South Street, Boston, MA 02130, (617) 983-6940. The state will even accept another state’s medical certificate, under some circumstances.
If we already got married in Canada (or got a civil union in Vermont), will Massachusetts recognize our relationship?
Yes. Just as it would recognize opposite-sex marriages from Canada, Massachusetts would consider you married and treat you as such under state law. If you have a civil union from Vermont, Massachusetts would treat you as if you were married.
Will my marriage be valid outside of Massachusetts?
If you go to Massachusetts and get married, you will be married. Whether federal and other state governments and private businesses will respect your marriage is a more difficult question. Businesses that already recognize same-sex couples (through domestic partnerships or similar systems) almost certainly will. It’s hard to say what will happen with businesses that don’t recognize same-sex couples yet. Some probably haven’t been asked and may be willing. (Click here http://www.aclu.org/getequal/rela/domestic.html to find out how to approach your employer.) Some will doubtless be opposed and will refuse.
Vermont, which has civil unions for same-sex couples, and California, which has a comprehensive domestic partnership system that goes into effect in 2005, will likely treat your marriage as it does domestic partnerships. The federal government has a law that says it will not. Many states will almost certainly refuse to recognize same-sex marriages from Massachusetts, at least at first. The bottom line is that this issue is headed for the courts and will take time to resolve.
While these issues are being resolved, you need to protect your relationship. For more information about medical powers of attorney, wills and other legal documents that you should consider, click here http://www.aclu.org/getequal/rela/protect.html .
If we are married in Massachusetts, will we have the same legal rights and responsibilities as heterosexual couples?
It depends on whether your home state recognizes the marriage. See the question above.
If we get married in Massachusetts, should we sue to force the state to recognize our marriage?
Before you begin any kind of case about your marriage, you should contact the ACLU or one of the other LGBT legal organizations. You may have a good claim that should be brought, but it’s also possible to do serious harm by suing. In 1997, an Alaskan couple sued the state for the right to marry. After they won a preliminary hearing, the state, with a 71% majority, passed a constitutional amendment, banning same-sex marriage. That ended the case. It also prevents any state court or the state legislature from ever allowing same-sex marriage until the people vote to change the state constitution again. The state has even used the constitutional amendment as an excuse not to recognize domestic partnerships.
If you think you would like to be involved in a case to have your marriage recognized in your home state, contact us by phone at (212) 549-2627 or by e-mail at getequal@aclu.org .
What should I say when asked if I’m married?
Say that you’re married (after all, you are) on applications for jobs, credit, mortgages, insurance and medical treatment, etc. However, if you know that the agency or organization asking does not recognize same-sex marriages, and especially if saying you’re married will get you some benefit, you should probably make it clear that your spouse is someone of the same sex and that you have been legally married in Massachusetts. If you don’t, you could be accused of acting improperly, and there could be consequences. This is especially true of forms from states other than Massachusetts and from the federal government, such as tax forms, Immigration and Naturalization Service (now known as Bureau of Citizenship and Immigration Services) forms, Social Security forms, etc.
You might feel you want to use your government forms to make a stand on the issue. We understand anger at not having your relationship recognized, but think long and hard about any risk you take to make a statement. Willfully breaking the law on principle may leave you in a lot of trouble.
Would we be entitled to file a joint tax return?
No. The Internal Revenue Service will not recognize same-sex marriages. Since you are required to declare your marital status, the issue becomes tricky. You don’t want to deny your marriage. The best bet would be to file as single and note on the form that you are married to a same-sex partner. Talk to an accountant if you can before you file.
If I get married in Massachusetts, can I sponsor my same-sex spouse for U.S. citizenship?
No. There’s a law that says the federal government will not recognize same-sex marriage, and that includes the Immigration and Naturalization Service (INS). While this policy may be challenged in court, you could be putting your non-national partner at risk of deportation by attempting to sponsor him or her until the courts have struck this policy down or Congress has repealed it. To tell Congress to change this discriminatory policy, click here http://www.aclu.org/getequal/rela/marriage.html .
What happens if we decide to split up?
The only legal way to get out of a marriage is to get a divorce. Unfortunately, the only state that we know for sure will divorce a same-sex couple is Massachusetts and Massachusetts has a one-year residency requirement. Vermont, which recognizes civil unions, may also allow you to dissolve your Massachusetts marriage, but Vermont also has a one-year residency requirement. That means that at least one spouse must be a resident of the state for a year prior to the divorce. To make matters more complicated, the fact that your home state might not recognize your marriage or let you get a divorce doesn’t necessarily mean you get out of the legal obligations of marriage.
The domestic partnership law going into effect in California in 2005 has an advantage over Massachusetts and Vermont in that by entering into a California domestic partnership, you agree that the California courts will have the authority to divide your assets and resolve custody and visitation disputes of any children you raise together should you decide to separate.
If we break up, could I be required to pay support to my spouse?
This will depend largely on whether your state recognizes the marriage. If you live in Massachusetts, Vermont, or (beginning in 2005) California, you could be required to support your ex to the same extent as any other divorced person. In states that don’t recognize your marriage and won’t allow you to divorce, this is less likely. But if your ex moves to a state that does recognize your marriage, you may not be off the hook.
If I am married to someone else, can I get a same-sex marriage in Massachusetts?
No, not until you’ve gotten a divorce. Entering into another marriage before you get a divorce is a crime in every state. Even if your state doesn’t recognize same-sex marriages, it’s possible that you could be prosecuted.
If I have a civil union from Vermont with someone else, can I get a same-sex marriage in Massachusetts?
No. Since Vermont treats a civil union as the legal equivalent of a marriage, you first have to dissolve the civil union before entering into a marriage with someone else. Otherwise you commit the crime of bigamy. Dissolving the civil union could be tricky however, because you have to live in Vermont for a year to get the civil union dissolved there. So far, no other state has been willing to dissolve Vermont civil unions, although Massachusetts likely will do so, provided you’ve lived there for a year.
What about a prior domestic partnership?
If you enter into a domestic partnership in California in 2005, it would also be a crime to get married to someone else in Massachusetts without first dissolving your domestic partnership. If you have a domestic partnership from a city or county registry, check with the municipality for its rules. While you may not be subject to criminal charges if you marry without dissolving that kind of domestic partnership, it would violate some domestic partnership policies and could expose you to legal liability. Since it’s generally pretty easy to dissolve a city or county domestic partnership, you should do it before getting married.
If we get married in Massachusetts, will it be easier for my partner or me to adopt our child?
If only one of you is legally a parent (through biology or adoption) a Massachusetts same-sex marriage probably won’t make it easier for the other to adopt. Every state allows “step-parent” adoptions (so step-parents can adopt the children of their spouses). Some allow “second parent” adoptions (so unmarried partners in both gay and heterosexual relationships can adopt the children of their partners). In the states that already allow second parent adoption, marriage isn’t necessary. Most states that don’t allow second parent adoptions probably won’t recognize same-sex marriages from Massachusetts.
For similar reasons, getting married in Massachusetts probably won’t make it any easier for both partners to become legal parents if you decide to have a child after you’re married.
If we get married in Massachusetts, will that mean that my spouse automatically becomes the legal guardian of my children?
No. Even if you were to get married to a person of the opposite sex in the U.S., your spouse would not become legal guardian of your children until you get a “step-parent” adoption.
So where’s the best place to make it legal?
This depends in large part where you want to go to have your ceremony. A civil union in Vermont, a domestic partnership in California, or getting married in Massachusetts or Canada would convey essentially the same legal rights and responsibilities – or lack thereof depending on where you live. There is no waiting period or blood test requirement to get a civil union in Vermont. But there’s a one year residency requirement for divorce, which would make it difficult to get out of a civil union if you don’t live in the state. You don’t even need to travel to California to register as domestic partners. You merely need to file a form with the state. California has the additional advantage of ensuring that you can easily dissolve the domestic partnership because you agree to have the California courts divide your community property and resolve any custody disputes. California also simplifies the issue of taxes by requiring that you file individual returns. But unfortunately, you don’t get to say you’re married if you choose a civil union or domestic partnership.
Only by going to Canada or Massachusetts can you officially get married. Getting married in Massachusetts may one day make it slightly easier to get legal recognition of your marriage in your home state. Both Canada and Massachusetts have one-year residency requirements should you decide to separate. The bottom line: if you don’t live in either of these states, there’s a lot to consider before tying the knot.
If my partner and I have already gotten married in Canada, or if we’ve entered into a Vermont civil union or California domestic partnership, can we get married in Massachusetts?
We haven’t completely figured this out yet, but it’s probably not a good idea. To get married in Massachusetts, you’d basically be saying that your earlier attempt to make your relationship legal wasn’t valid. The whole point of committing yourselves through a Canadian marriage, a Vermont civil union or California domestic partnership is to try to get legal protections for your relationship. By going to Massachusetts to get married after having already entered into an earlier commitment, you run the risk of a court interpreting this earlier commitment as invalid. One obvious place where this could be a problem is if you decide to separate. A judge could say that your earlier commitment wasn’t valid and deny one partner his or her rightful share of community property. The issue could also come up in child custody and visitation disputes.
Source: http://www.aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=14455&c=101
