Waldlaw Blog

Thursday, June 12, 2008

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!!

4 Comments:

  • You're fabulous. Thanks for blogging answers to all of these questions -- and especially about the WACKY wisconsion marriage evasion legal possibilities. Good grief!

    By Blogger leanne waldal, at 10:49 AM  

  • I'd be interested in your response to something I read elsewhere regarding the dual status of married same-sex couple and registered domestic partners. The recommendation was that same-sex couples who wish to marry in California would be best served to ALSO be sure that they are registered as domestic partners. The reason being that although the marriage is recognized in California, Massachusetts, New York, and possibly a couple of other states, the marriage is not recognized in the majority of states. A registered domestic partnership, however, is recognized in a larger number of jurisdictions across the United States. Any same-sex married couple who plans to travel outside of California (and what same-sex couple stays rooted at home?) should therefore also be covered by a registered domestic partnership to assure (although not insure) less hassle in jurisdictions that would recognize the domestic partnership but not the marriage should an issue arise. (How is that for convoluted?)

    By Blogger JeffK, at 12:18 AM  

  • You are right Jeff. NCLR and EQCA and others are making the recommendation that folks who are marrying now and who haven't previously registered do so, for exactly the (convoluted) reasons you gave.

    My kids are 12 and 14, and this all seems completely ridiculous to them. Their generation simply can't imagine what all this fuss is about. That seems to be true for young folks up through college. It gives me hope that we will live to see sanity win out over the current chaos....

    By Blogger Deborah Wald, at 11:19 AM  

  • I've been told that if Prop 8 is succesful that the same-sex marriages performed prior to the vote will be grandfathered and remain valid. However, I cannot find a definitive answer to this online...can you help?

    By Blogger Michael, at 10:57 AM  

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