Guest Author Julia A. Perkins: Love & Marriage – What does it mean for same-sex couples?
UPDATE June 26, 2015: The Supreme Court of the United States overturned the lower court of appeals stay allowing gay marriage bans in several states, making same-sex unions legal in all 50 states.
About 114,000 same-sex couples nationwide have been legally married between 2004, when Massachusetts became the first state to recognize such marriages, and the end of 2012, according to the Williams Institute, a think tank at the UCLA School of Law. That’s about 0.18 percent of the 60.3 million married couples in America currently, according to the U.S. Census Bureau.
In March 2014, federal District Judge Bernard Friedman struck down Michigan’s ban against same-sex marriage. About 320 couples were able to get married before the Court of Appeals indefinitely stayed the decision pending appeal. For those 320 couples who were able to marry before the stay, the federal government will recognize the marriage and the good news for these couples is that they are entitled to federal benefits and entitlements. That means you can file your federal tax return as a married couple (if the decision is upheld), but for state purposes you are still single. If the Sixth Circuit affirms Judge Friedman’s decision, what does that mean for same-sex couples? It’s marriage. There is no trick here.
But for gay people in Michigan, marriage wasn’t a practical thought until just very recently and some of the benefits (and detriments) were never before considered. Of course, if you marry you are entitled to file taxes together, receive health insurance benefits from your spouse, obtain social security benefits based on your partner’s income (if you are married the requisite period of time), inherit, and be deemed next of kin.
Be careful what you wish for
With marriage also comes certain responsibilities and obligations. Once married, without a prenuptial agreement carving out such things, what you accrue by “way of the marriage” becomes marital property. In other words, property to be equitably divided at the time of a divorce. No longer is your income just your income. Even if held in a separate bank account, if it was earned during the marriage it is deemed marital.
Retirement income accrued during your marriage becomes marital property subject to division. Even premarital property or separate property, if commingled with marital funds or treated in other specific ways, could be deemed transformed into marital property subject to division. Spousal support is recognized in Michigan. Therefore, if the union terminates, you could be entitled to or liable to pay spousal support based on the 12 spousal support factors in Michigan.
DeBoer v. Snyder, the lawsuit ultimately lifting the ban on same-sex marriage was filed by the plaintiffs because as an unmarried gay couple both partners were not able to adopt a child. Only one. If same-sex marriage is legal, both partners will be able to adopt and be parents of the same child. This affords the parties rights as parents if the union terminates (custody and parenting time) and also obligates or affords them child support.
What should you consider as you contemplate marriage?
In one word — everything. Marriage is a very big commitment regulated by the state and that regulation is most felt when that relationship ends and your (soon-to-be) ex-partner seeks all of the rights afforded by the state. You may also want to consider a prenuptial agreement that may help you protect your assets upon marriage.
About the Author:
A member of the Jaffe Law’s Litigation Group, Julia A. Perkins specializes in family law litigation, which includes support and custody matters. A trained mediator in family law, her major emphasis is representing clients with respect to divorce, property division, custody and support issues, paternity and all post judgment matters.
To read more from Jaffe’s INSIGHT which is a compilation of articles developed to help gay couples navigate their rights and responsibilities since the Windsor decision, visit: http://www.jaffelaw.com/en/news/jaffe_updates.aspx.
The information contained herein is for education and information purposes only, not to give legal advice and not to promise any particular outcome in any particular set of circumstances. Please consult with an attorney before making a decision using only the information provided in this article.