Is My Marriage Valid? Is it Recognized?

Continuing with top questions of the week.... There are same-sex couples all over the country who have already been married for several years. Some married in Massachusetts. Some married in Canada. Some married in Spain. They are trying to figure out if their marriages are now valid in California. The answer is: if your marriage was valid when it was entered into, it is valid now -- and it has been valid this whole time. But now California will recognize it and assign legal rights and responsibilities accordingly. The important thing is to distinguish between valid and recognized. A valid marriage is a valid marriage is a valid marriage (to borrow a concept from Gertrude Stein) -- it just won't be recognized everywhere. An invalid marriage, on the other hand, did not magically become valid in California on June 16, 2008. Four examples: (1) Ann and Barbara traveled to Canada to marry. They followed all the proper procedures, and entered into a valid marriage in August, 2006. As of June 16, 2008, that valid marriage is now recognized in California. Their date of marriage remains the date they married in 2006, even if they go through a new marriage ceremony in California now. (2) Chad and Dennis were vacationing in Provincetown in 2005, and decided to get married. They lied to the Clerk to get their license, saying they were moving to Massachusetts. In fact, they returned to California and have stayed here ever since. Their Massachusetts marriage probably wasn't valid under Massachusetts law when it was entered into, since it violated the Massachusetts marriage evasion statute. If it wasn't valid when it was entered into, it still isn't valid. So if they get married now in California, their date of marriage probably will be the new California date. (3) Eve and Francesca got married at San Francisco City Hall in February, 2004, during what is now being called the Winter of Love. Their marriage was subsequently invalidated by the California Supreme Court, which found that it was entered into without legal authority. That marriage remains invalid (legally, that is), even though same-sex marriages are now legal in California. (Because, to borrow from Gertrude Stein again, an invalid marriage is an invalid marriage is an invalid marriage....) (4) Greg and Hans were living in Massachusetts, and married there in 2004. In 2005 they moved to California, where they were treated by law as single people. However, as a technical legal matter they remained married in California -- it's just that their Massachusetts marriage wasn't recognized here until June 16, 2008. Now that same-sex marriages are recognized in California, their marriage is as solid here as it was in Massachusetts and there is no need for them to marry again (and if they choose to do so, their date of marriage will remain 2004). There, that's my best effort at explaining the valid/recognized distinction. When in doubt, ask yourself what Gertrude Stein would say....

Marital Name Changes

Here is 2nd biggest question I'm being asked about same-sex marriages in California (if you want to see the #1 question, see my last post): Will the government respect a change in surname brought about by a same-sex marriage? Quick background: when folks get married, there is a place on the marriage license to record a change of last name. Typically, this has been used for a wife to take her husband's last name, and no further legal name change procedure has been required. In California, folks registering as domestic partners with the state have been able to change their last names through the registration process since January 1, 2008, thanks to the Name Equality Act of 2007. The problem lies not with California, but with the federal government. Under provisions of the Patriot Act, one can only have one last name and it is the last name registered with the Social Security Administration. So, for example, the California DMV cannot issue a driver's license with a new (marital) last name unless Social Security has changed the name as well. And since the federal Defense of Marriage Act (DOMA) prevents federal recognition of a same-sex marriage, we have been unsure whether Social Security would respect name changes brought about through a California same-sex marriage. So I had my office manager call the Social Security Administration. After a long time on hold, listening to muzak and quietly swearing, she reached a human being at the Social Security Administration who listened to her question, then put her back on hold while she did lord-knows-what to try to find an answer. Lo and behold, when the poor gal at the SSA who had the bad luck to answer our call came back to the phone she informed us that starting June 17, the Social Security Administration will accept a marriage license as valid proof of a legal name change for same-sex couples who wed in California, the same way they do for different-sex couples. Having dealt for years with the intransigence of the federal government on all issues relating to recognition of same-sex couples and families, I admit to remaining just a wee bit skeptical. But that's what they told us. So I would ask my lesbian and gay readers: if you get your name changed through your marriage, go on down to the Social Security Administration with your marriage certificate and try to get them to honor the name change, and then let us know what happens!! You will be doing all of us a service....

This Week's Million Dollar Marriage Questions

As June 16 approaches and excitement builds, those of us practicing same-sex family law in California are getting hit with a barrage of legal questions. I will strive, over the next few days, to answer as many of them as possible. So this week's absolute TOP QUESTION is: If my partner and I married in ... [fill in the blank with Massachusetts, Canada, Spain], should we marry again in California?? To me, this question actually has two distinct parts: (1) should we marry again (i.e. is it legally advisable or important to do so), and (2) can we marry again (i.e. is it legally permissible to do so). At first blush, it appears that the California Family Code would prevent a couple already validly married somewhere else from marrying again in California. A marriage, under California law, is defined as a union of two previously unmarried persons. (Presumably, this is in large part because we want folks to have clarity about their date of marriage. If, for example, a couple married in Canada in 2005, we don't want them to marry again in California in 2008 because this will raise questions about which is their "date of marriage" for legal purposes. So generally folks who have married once and now want to do it again will renew their vows, rather than actually undertaking a second marriage.) However, there appears to be a growing consensus that the legal requirement that you be unmarried in order to enter into a new marriage actually means that you can't already be married to anyone other than the person you are marrying. We are absolutely certain this is true for domestic partners who want to marry -- that is, domestic partners clearly are free to marry their current domestic partners without first terminating the partnership -- it is only if they want to marry someone other than their current partner that they first need a divorce. So, without being absolutely 100% certain, we at the Wald Law Group (in consultation with a lot of other smart attorneys) have decided to take the position that same-sex couples who married in other locations and now want to marry again are free to do so as long as they are marrying their current spouses. Which brings us to the second part of the question: should folks who already married elsewhere marry again in California? Here is my as-definitive-as-possible answer to that question: there is absolutely no need for anyone who entered into a valid marriage elsewhere to remarry in California. As of June 16 at 5:01 p.m., your valid marriage from Massachusetts or Canada or Spain will be equally valid and recognized in California. As it should be. So, to summarize, the answer to this week's million dollar marriage question is: If you previously entered into a valid marriage in another jurisdiction, there is no need for you to marry again in California. However, if you WANT to marry again in California, nothing should preclude you from doing so. And, by the way, if you have reason to question whether your previous marriage is legally valid (e.g. if you married in Massachusetts without residing there, in violation of their marriage evasion statute), you should consult legal counsel to help you figure out your options. THERE -- that is what passes for clarity in this amazing, historic and confusing moment!!

Lions and Tigers and ... Marriage Evasion Statutes??

I hate to rain on anyone's parade, but.... I was reminded last weekend, at a meeting of the National Family Law Advisory Council of the National Center for Lesbian Rights (which I Chair), about marriage evasion statutes. Marriage evasion statutes are laws designed to prevent a resident of State A from going to State B to get married if the marriage would have been illegal in State A. They were primarily designed to prevent underage sweethearts from crossing state borders to enter into underage marriages that they couldn't legally enter into in their home states. But now, they are undoubtedly going to be applied to same-sex couples who come to California from other states to get married. So if you -- or anyone you know -- are considering coming to California to marry after June 17, it is time to find out whether your state has a marriage evasion statute and, if so, what it says. For example, Arizona Revised Statutes section 25-112 provides that: "Parties residing in this state may not evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage." Since Arizona Revised Statutes section 25-101 says that "marriage between persons of the same sex is void and prohibited," Arizona's marriage evasion statute presumably means that a same-sex couple from Arizona cannot come to California and get married and expect their marriage to be recognized when they go home. Pretty straightforward, right? Well, it gets far more exciting than that. Take Wisconsin. Wisconsin Statutes Annotated, section 765.30(1)(a) provides that: "Any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state ... may be fined not more than $10,000 or imprisoned for not more than 9 months or both." Yes, you read that right. Since same-sex marriage is prohibited in Wisconsin, this means that a same-sex couple from Wisconsin who travel to California to get married, then return to Wisconsin, will be subject to a fine of up to $10,000 and up to 9 months in prison. For getting married. In California. Where the marriage is legal. You see what I mean? It's exciting, no?! So here I am, family law attorney in San Francisco, trying to figure out how to let all those happy lesbians in Madison know that they could go to prison if they come here to get married. How the heck am I supposed to do that??? Any ideas about how to get the word out around the country about marriage evasion statutes are most welcome. In the meantime, if you know any gay folks in Wisconsin, you might want to warn them....