Waldlaw Blog

Tuesday, June 03, 2008

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....


  • Why aren't the national groups letting couples across the country know this information? We certainly can't count on couples asking these questions themselves. They just hear "no residency requirement" and off they go.

    I blogged about one reason a couple might not want to marry -- if one partner is facing nursing home care and will seek Medicaid payment for it. Now of course under DOMA the couple won't be married under federal law. But that's THIS year; next year, with a Democratic president and congress (I hope!), the part of DOMA prohibiting federal recognition of same-sex marriages may be repealed; Obama is on record in support of repeal. So it isn't too soon for an aging same-sex couple to take this into account; after all, lawyers who practice elder law often advise different-sex aging couples not to marry for this very reason!

    By Blogger Nancy Polikoff, at 10:37 AM  

  • Even though I'm a little late on this posting, I want to thank you for detailing out some of the penalties that couples could face if they violate the marriage evasion statutes.

    I am currently a student of Paralegal studies and we are discussing this issue in our family law course.

    The news hasn't really focused on the marriage evasion aspect of out of state couples getting married in Mass. or Cali. (Now unfortunately, they don't have the option of Cali.) So, I wonder, are the states enforcing these statutes? Or are they on the books as a threat or a state option to penalize? The status of our country's attitude on underage marriages doesn't seem to be changing, which was the initial reason for the statutes and the penalties. The coincidence that same sex marriages fall under the regulation of these statutes seems to be kind of incidental, maybe no one expected people of the same sex to want to get married. Now, of course, with all the civil rights work that has been done over the last fifty to one hundred years all that has changed.

    I think the real question is, in light of the changing environment of same sex marriages (and I am optimistic, I think this is very much a transitional time in our country where it is getting used to the idea of gay people being married. We just elected our first black president, when will the first homosexual president get into office?), is there a real fear of penalty if a couple does violate the statute?

    Has anyone been penalized?

    By Blogger Lisa, at 12:15 PM  

  • Good work done!

    family law san francisco

    By Blogger Liaise, at 2:33 AM  

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