Marriage Tips and Traps July 2008 This document is intended…

Marriage
Tips and Traps




      July 2008
This document is intended to provide general
information only and cannot provide guidance or
legal advice as to one's specific situation.
Moreover, the law is constantly changing and
this publication is based upon the information
that is known to us as of this printing.      For
guidance on your particular situation, you must
consult   a   lawyer.   You   should    not   act
independently on this information. The provision
of this information is not meant to create an
attorney-client relationship. Check our website,
www.glad.org, for more information.


If you have questions about this publication,
other legal issues or need lawyer referrals, call
GLAD's        Legal      InfoLine      weekdays
between 1:30 and 4:30pm at:


    800.455-GLAD (4523) or 617.426.1350
                               Contents
 INTRODUCTION                                       1

 FORMS ­ WHAT AM I?                                 2

 FINANCES ­ ESTATE PLANNING                         3
 Belt & Suspenders                                  3
 Estate Planning...In An Uncertain World            3
 Tax Time                                           4
 Credit                                             4

 BENEFITS                                           5
  Workplace Domestic Partner Programs               5
  Disqualification From Government Programs         5
  Disqualification From Benefits Obtained Through   6
Deceased Spouse
  Important Federal Benefits Will Be Unavailable    6
  Taxes On Health Insurance Benefits                7

 FAMILY                                             8
 Adopting                                           8
 Parenting In General                               8

 DIVORCE                                            9

 SPECIAL CIRCUMSTANCES                              11
 Military                                           11
 Immigration/Bi-National Couples                    11
Introduction

  In addition to the love and commitment associated with marriage, it is
also an enormous legal institution, touching nearly every area of life and
death. For most people most of the time, marriage is advantageous
legally, conferring hundreds of state protections and over 1000 at the
federal level.

   Marriage also brings some burdens and yours may be a situation in
which marriage's legal consequences are disadvantageous for you or
your family. Getting married may disqualify you from certain
government benefit programs, or may raise your profile or your sexual
orientation to governmental authorities.

  Even beyond the responsibilities associated with marriage, a same-sex
couple will meet with a mixture of respect and disrespect from private
institutions and government agencies and institutions. Given the
discriminatory laws in place in many states and in the federal
government, some protections will be denied to you and your family.
One federal law says that all federal programs and laws will only treat
marriages of a man and a woman as marriages. This means that same-
sex married couples will be denied approximately 1138 rights and
protections that are attached to marriage under federal law.

   The following list doesn't tell you everything you need to know -- no
list can -- but it illustrates some of the legal complexities of marriage,
and sets forth a few things to consider before you make this personal and
legal commitment to marry. GLAD encourages people to seek
professional advice about your particular situation and how getting
married will affect you and your family.




                                    1
Forms ­ What Am I?

  If you marry in Massachusetts, you are married. No one can take that
away from you, but they may discriminate against you.

           If you want your marriage to be respected, you should
           hold yourself out as married ­ because you are. That's not
           always easy given the amount of discrimination we are
           likely to see.
           You should never lie on a form, particularly if you must
           sign it under oath.
           There may be consequences to filling out forms as single
           one day and married the next. For example, tax returns
           are often requested with mortgage loan applications. If
           you filed as single, you will want to have a statement on
           the form about why you did so (see tax section below).
           Even if other states and the federal government don't
           respect your marriage, you can always indicate on a form
           that you were married in Massachusetts on X date to
           someone of the same sex.




                                  2
Finances ­ Estate Planning


 Belt & Suspenders

  Because we are in a transition period and because the legal status of
married couples will remain in flux in other states, it is important to do
everything you could do before marriage was available. This includes:

      Writing a new will (including naming the guardian of your
      child(ren)) ­ in part because in most states, a marriage
      automatically revokes any existing will;
      signing documents authorizing others to make health care
      decisions;
      signing documents authorizing others to make financial
      decisions; and
      directing the disposition of your remains.

 Estate Planning ... In An Uncertain World

  Since none of us can predict the future or the results of litigation, it is
best plan for all possibilities. For example, when I die, is my marriage
respected by my state or not? When I die, will federal DOMA still be on
the books or not? It is helpful to:

      Gain expert advice and use multiple strategies (through wills,
      trusts, agreements) to ensure your wishes can be met to the
      largest degree possible no matter what the situation at your
      death;
      Do tax planning ­ income tax, gift tax, estate tax ­ at the state
      and federal levels; and
      Do Medicaid and long term care planning, concerning issues like
      assets available to both spouses, asset transfer issues, and liens
      and estate recovery.



                                     3
                                                 Finances ­ Estate Planning


      Tax Time

      Remember that some married people may pay a "marriage
      penalty" on their income taxes. Others have a "marriage bonus."
      You may well be in the position where you file your taxes as
      "married filing jointly" at the state level and "single" at the
      federal level. You may even need to fill out two federal forms ­
      one as married and one as single ­ so that you can transfer the
      "married" numbers to your state form even though you won't
      file the "married" federal form.
      On federal forms, it may make sense to file as single but to
      include a cover letter or disclosure form with the tax return.
      This would allow you to state you are married and that the only
      reason you are filing as single is because of federal DOMA (or a
      state DOMA). Another alternative is to put an asterisk by the
      "x" in the "single" box and indicate at the bottom of the form
      that the taxpayer was married on whatever date he or she was
      married, and that the taxpayer is saying they are "single" for
      purposes of income tax filing only.

 Credit

  Some states require a spouse to assume the other spouse's debts to
creditors.




                                   4
Benefits


 Workplace Domestic Partnership Programs

  If an employer-sponsored domestic partnership plan requires you to be
unmarried, then your marriage may disqualify you from benefits. Check
in advance with your employer to ensure that you are covered one way
or another. If your employer is considering eliminating domestic partner
benefits because marriage is now an option, encourage them to maintain
the plan since not all people will want to marry, be able to marry, or be
in a state that respects their marriage.

 Disqualification From Government Programs

  Getting married may make a person financially ineligible for, or
reduce the amount of assistance a person may receive from, certain
government programs. This is because such programs treat your
spouse's income and assets as yours. Such programs may include, but
are not limited to:

      Medicaid (both for insurance coverage and long-term care;
      called MassHealth in Massachusetts);
      Cash Assistance for Low Income Families (Transitional Aid to
      Families With Dependent Children in Massachusetts);
      Subsidized Child Care for Low Income Families;
      Cash Assistance and other General Relief programs for other
      low income people (Emergency Aid to the Elderly, Disabled and
      Children in Massachusetts);
      Emergency Shelter for Homeless Families (emergency
      assistance in Mass.); and
      Food Stamps (eligibility based on household income so it should
      not be affected if you and your partner were previously seen as
      part of the same household).

                                   5
                                                                      Benefits

 Disqualification From Benefits Obtained Through
Deceased Spouse

  Both public programs and private benefits sometimes are available to
a person because of a deceased spouse. Remarriage often terminates
those benefits, such as:

     Social Security payments based on your former spouse's
     earnings;
     Worker's Compensation benefits for a former spouse killed on
     the job; and.
     A variety of pension, disability and retirement benefits based on
     the former spouse's employment or benefits.

 Important Federal Benefits Will Be Unavailable

  It is impossible to catalogue all of these, but married partners:

     will not be eligible to share in each other's social security;
     will be treated as single in all tax matters (particularly
     consequential after a death) sometimes requiring people to pay
     high taxes on their own jointly owned homes;
     will have no access to veteran's benefits available to spouses of
     veterans;
     will not have the ability to transfer property at divorce free of tax
     consequences, thus making it more difficult (and potentially
     depleting the couple's assets) to achieve a fair balance of assets;
     will be unable to freely transfer assets to a spouse with no loss of
     eligibility for public nursing home care.




                                     6
                                                                   Benefits

 Taxes on Health Insurance Benefits

  Though married different-sex couples do not pay federal taxes on
spousal health benefits, married same-sex couples will have to do so.
Because of the 1996 federal Defense of Marriage Act, which defines
marriage as between a man and a woman for purposes of federal law, the
federal government will not recognize a marriage of a same-sex couple
for federal tax purposes.. The value of the coverage provided to the
employee's same-sex spouse will be treated as wages for federal
employment tax purposes.

  There is one exception to the general rule of federal taxation. If your
same-sex spouse qualifies as a "dependent" under IRS rules without
regard to his or her status as a spouse under Massachusetts law, the
value of the benefit to your "dependent" is not taxed as wages to you as
the employee.

  In Massachusetts same-sex couples do not have to pay state income
tax on the value of spousal health insurance benefits.

  Outside of Massachusetts, it is not clear how states will tax health
insurance benefits provided to an employee's same-sex spouse. If you
believe that your state is unfairly taxing your employee health insurance
benefits for your same-sex spouse, please contact GLAD.




                                    7
Family


 Adoption

  Getting married may affect your ability to adopt as a "single" person
from some other states and foreign countries. Virtually no foreign
countries permit an openly gay or lesbian couple to adopt, thereby likely
barring all international adoptions for married same-sex couples.

 Parenting In General

   In Massachusetts, a child born during a marriage is presumed to be the
child of both spouses (209C, § 6), including a child born to a married
woman with the use of donor sperm, who is presumed to be the child of
the "husband," and therefore presumably of the partner. That sounds
good, but it is not the same level of protection as your family would gain
by going through the legal process of jointly adopting any child born
during the marriage (or a pre-birth declaration of parentage ­ see a
lawyer about whether this makes sense for you). Adoptions are legal
judgments entitled to respect in other states and by the federal
government. This will help you and your children if you ever plan to
travel outside of Massachusetts. It will also help in the event of one
parent's death because then the child can collect social security from the
federal government based on the adoptive parent relationships.




                                    8
Divorce

  Once married, you remain married until divorced by the state. You
cannot remarry until your divorce is complete. In addition,

     You must live in Massachusetts for one year before you can file
     for divorce and for at least six months until the proceedings may
     be completed. People from other states who marry in
     Massachusetts should be respected as married in their home
     states, but it is possible that a state will disrespect the marriage,
     making it difficult to impossible to divorce.
     In most places, divorce requires legal proceedings in which a
     judge decides or oversees a fair division of property (community
     or marital property) between the parties and can order support
     for the ex-spouse as well.
     If a couple has children, the judge will sort out parental rights
     and responsibilities (including child support obligations) based
     on the child's best interests.
     One party may claim that a particular child is not a child of the
     marriage and not within the jurisdiction of the court. It is
     important to secure the child's legal status to both parents
     through adoption or other means and not rely solely on the fact
     of the marriage.
     In some states, the (mis)conduct of the parties during the
     marriage (i.e., adultery) can affect the division of property
     disadvantageously to the party who acted against the marriage.
     Some of the legal rules in place that aid the transfer of property
     at divorce or provide security during this difficult transition
     period are not available to same-sex couples because of federal
     DOMA. These include rules allowing the house and some other
     assets to be transferred or sold without tax consequences, the
     ability to split a pension earned by one party during the marriage
     ("QDRO"), and the right to continue receiving health insurance
     coverage through a former spouse.

                                   9
                                                            Divorce

 Consider a premarital agreement (drafted before the marriage
 where both parties share all information and are each separately
 represented by attorneys) if you wish to vary the rules that would
 otherwise apply at divorce or to handle otherwise complicated
 tax and property issues.




                             10
Special Circumstances


 Military

  The military still provides that an "attempted marriage" to a person of
the same sex is a ground for discharge. In other words, joining in
marriage will likely violate the "Don't Tell" provisions of the military's
anti-gay policy and cause separation from military service for that
reason.

 Immigration/Bi-National Couples

  U.S. law affords many benefits to foreign ("alien") spouses but those
benefits will not be available to married same-sex couples. In addition,
marrying can bring you to the attention of the government which can be
dangerous if you or your spouse are "out of status."

      Even if you marry, you cannot sponsor your non-citizen spouse
      for legal permanent residence. Immigration issues are controlled
      by federal law and the federal anti-gay, anti-marriage law bars
      protections for same-sex spouses.
      Applying for legal permanent residence based on your marriage
      to a person of the same sex could lead to deportation if you are
      out-of-status.
      Simply getting married could cause problems if you are applying
      for a non-immigrant visa or status like a tourist or student visa.
      If you are married, a U.S. immigration official may deny you
      entry to the U.S. on the grounds that you intend to remain in the
      U.S. permanently rather than merely temporarily. Your
      marriage would be evidence of an intention to remain, i.e, that
      you are not merely a tourist or student.
      If an individual misrepresents any information at all, the
      misrepresentation can bar him or her from future immigration
      benefits or put him or her at risk for deportation.
                                    11
Gay & Lesbian Advocates & Defenders (GLAD)
is the leading legal rights organization in New
England dedicated to ending discrimination
based on sexual orientation, HIV status and
gender identity and expression. Through impact
litigation, education and public policy work,
GLAD seeks to create a better world that
respects and celebrates diversity--a world in
which there is equal justice under law for all.


GLAD's Legal Infoline and publications are
provided free of charge to all who need them.
We hope that those who are able will make a
contribution to ensure that GLAD can continue
the fight for equal justice under the law.


To make a tax-deductible contribution, log on to
www.glad.org, or call us at (800) 455-GLAD
(4523) with your credit card, or mail your check,
payable to GLAD to 30 Winter Street, Suite 800,
Boston, MA 02108.       If your workplace has a
matching gift program, please be sure to have
your donation matched. Please contact us if you
would like more information on becoming a
GLAD partner.


                    Thank You!
Gay & Lesbian Advocates & Defenders
30 Winter Street, Suite 800
Boston, MA 02108
Tel 617.426.1350
1.800.455.GLAD (4523)
Fax 617.426.3594

www.glad.org