Same-Sex Marriage, it is Not All Equal. The Value of Prenuptial Agreements and Adoption.
Did you know that the vast majority of states still ban Marriage Equality? What does this mean to you? It means a bunch of inconsistencies; a few which may have meaning to you are as follows:
The Immigration and Nationality Act is Federal which means that the Federal Government, and not individual states, control Immigration laws and policy in the US. This means that if you marry in a Marriage Equality State, but live in a Non-Marriage Equality State, you can still apply for Immigration benefits for your spouse. For example, if you and your same sex partner legally marry in a Marriage Equality State such as New York, or another country which recognizes same sex marriage, you are considered Legally Married by the United States Citizenship and Immigration Services and, if you otherwise qualify, you can sponsor your spouse for a green card or other Immigration Benefits. What if you married in New York but live in a Non-Equality state such as Pennsylvania at the time you want to apply for Immigration benefits? You can still apply for Immigration benefits with the USCIS since it is the place of Celebration (where you were married) and not the place of residence which governs. This means that you can apply from any State as long as you otherwise qualify for US benefits. This is great news but…
What if your marriage does not work out? According to a study by the Williams Institute, a Los Angeles based think tank, the divorce rate for same sex couples is currently 50% of the divorce rate for heterosexual couples, but unfortunately not all marriages work out. The majority of states do not recognize same sex marriages. They will not grant a divorce for a couple who they do not consider to be married. Unfortunately many of the states which recognize same sex marriage have a residence requirement. So let’s take our couple who married in New York but now live in Pennsylvania. Most likely they will no longer qualify for a divorce in New York due to New York’s residence requirements. Pennsylvania does not grant divorces to same sex couples. While you can shop for states which will marry you, it does not work the same way for divorce.
What does this mean? It means that if you do not reside in a marriage equality state, as a same-sex couple you may not be able to divorce. What can you do to protect your assets and assure a fairly smooth breakup? The best way is by utilizing a prenuptial agreement; some states even recognize a postnuptial agreement. While not romantic, this is a legal document, like a contract, which distributes the assets of the marriage. When properly executed, prenuptial agreements are recognized by all states and can prevent a bad situation from becoming worse.
The same is true for children and child custody. Protect yourself and your family; make sure that children of same-sex marriages are adopted by the non-biological parent or both parents. If the marriage breaks up the non-biological parent will have a very difficult time obtaining join-custody if the biological parent or sole-adoptive says no.
Finally, work with a lawyer and financial/estate planner who have experience with these complex issues and other issues which can arise for same-sex couples and their families.