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!!