Are you Married? Are You Sure? Post Marriage Equality Caveats

The United States Supreme Court resolved the question of whether same-sex couples can marry. But the question of whether a couple is married and, if so, the beginning date of the marriage is more complicated. For example, in February 2004, San Francisco began issuing marriage licenses to same sex couples in spite of the state’s ban on same-sex marriage. At the time, thousands of couples rushed to marry in San Francisco, some from out of state, including Texas. Later that year, the California Supreme Court ruled that all such marriage licenses were void. Thus, any marriage license obtained during this time period may not be valid.

Civil Unions and Domestic Partnerships

If you were one of the many people who obtained a domestic partnership or civil union in another state, you should be aware that these entities have legally binding significance, including legal protections and responsibilities similar to marriage. Moreover, following the passage of marriage equality, at least six states automatically converted a civil union or domestic partnership to marriage, whether or not the couple intended to be married. Therefore if you obtained a civil union or domestic partnership with an ex and never legally dissolved the relationship, you may have ongoing legal obligations to your ex, or you may even be married!

When did Your Marriage Begin?

As other states began recognizing marriage equality beginning in 2004, many Texans married in one of these states. Following federal recognition of same-sex marriages in Windsor, even larger numbers of couples married out of state, gaining access to some of the federal benefits of marriage. Thus, before Texas recognized their relationship, there were many same-sex couples living in Texas who were married for the purpose of most federal laws, but were not recognized as married in Texas. The obvious question is whether the marriage began as of the Supreme Court ruling on June 26, 2015, or the date of the out of state marriage. While the likely answer seems to be the date of the out of state marriage, the state of Texas has argued, and will likely to continue to argue, otherwise.

Common Law Marriage

Texas is one of several states with common law or informal marriage. For a common law marriage to be valid, the couple must (1) agree to be married; (2) represent themselves as married to others; and (3) live together as a married couple in Texas. This issue is particularly applicable to couples living together before marriage equality who choose not to have a ceremonial marriage. The obvious question is whether a couple can meet the requirements of common law marriage, particularly (1) and (2) above, at a time when Texas prohibited their marriage. At least two Texas courts have approved the validity of common law marriages between same-sex couples pre-dating the marriage equality ruling.

For the reasons indicated above, it is important to be clear with your partner about your intentions with respect to marriage. If you do not intend to be married, you may wish to specify this intention in a domestic partnership agreement (also know as a cohabitation agreement).

Questions? Contact me.

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