By Elizabeth Schwartz
Special to Lesbian.com
Marriage equality is the law throughout the United States and this is not going to change in the Trumpocalypse. We are free to commit to each other under the law of every state, and our commitments must be recognized nationwide.
We no longer have to operate as outlaws—and we can have in-laws! But here’s the rub: many LGBTQ couples, accustomed to living off the grid and in the margins, are so thrilled to have the opportunity to marry that we are gleefully jumping into marriage headfirst, without concern for the legal and financial consequences. It is easy to get caught up in the excitement over the victories we have achieved, especially when there is a societal expectation is that each and every loving and committed couple ought to marry, often considered one of life’s milestones. Before racing to the altar, it is important to understand that the law can be treacherous. If you are considering marriage, remember this: just because you can get married does not mean you should.
For twenty years I have been helping LGBTQ families create and dissolve relationships in a particularly hostile legal environment—the wacky, backward state of Florida. I have counseled thousands of individuals and couples who failed to plan properly as they formed unions and families. Failing to plan has terrible consequences. Holding the hands of devastated clients, I only wish that they had consulted me earlier. That is why I wrote Before I Do: A Legal Guide to Marriage, Gay & Otherwise.
Now that we can freely say “I do,” we need to know the answers to a few simple questions:
• What are the income tax consequences of marrying?
• If you split, what happens to your kids, your assets, and your property?
• If you pass away, what happens to your kids, your assets, and your property?
• Does your wife or potential spouse have debt? Can a creditor come after you for your spouse’s debts? What can you do about it?
• What if you have children from a prior relationship? How can you protect them?
• Will you co-parent children? What legal relationship will you have with the children? Are you committing through your actions to child support?
• What if you inherit during your marriage? Is that inheritance shared between you?
If you care enough to enter into the very solemn act of marriage, treat it with the respect it deserves, and exercise caution. Too many couples jump into marriage without a full sense of the consequences or acknowledgement that a legal marriage is a contract entered into with your state to be governed by the laws and regulations governing domestic relations, even if some of those laws do not exist at the time of the marriage!
Before I Do is for all married people and for those thinking about formalizing a union. Many same-sex couples have obtained real estate and mortgages together, commingled bank accounts, and established joint credit cards. Some people who suffered in previous relationships believe they learned the hard way how to protect themselves and their assets. Others believe they are doing a good job in their household accounting. Everyone needs to understand that legal marriage adds new rights and responsibilities. What rights and obligations does marriage confer and what rights and obligations does it not provide? Before I Do will help you to answer these questions.
The ins and outs of marriage are foreign to many of us. As a community, we are not prepared by generations of conversation about how to make our relationships with others of the same gender last. We cannot be expected to know automatically what happens if marriage does not work: we have not lived in a world with premarital guidance for LGBT couples.
We have suffered systematic exclusion from many of our communities of faith, a space where traditionally some version of marital preparation happens. We have not been a part of the proverbial locker room conversations that include cautions about prenuptial agreements and the distribution of marital assets. Once the freedom to marry became law, many same-sex couples faced the supposition that we would marry pronto; if we did not, we faced questions about our commitment. Many assumed that the sole reason we were not married was because legally we could not be; once the law changed, these same people thought that certainly we all would race to the altar.
I am not trying to discourage anyone from legally formalizing commitments. I fought long and hard with thousands of other advocates for our freedom to marry. Social science research suggests that marriage has positive effects on our physical and mental health, especially as we age. A strong marriage can be the cornerstone of a healthy, successful family. I am grateful that my partner and I were able to affirm our commitment through legal marriage five years ago.
Before I Do: A Legal Guide to Marriage, Gay & Otherwise is for couples who have been coloring outside the lines and now are considering making their relationship legal. It explains what marriage means—and does not mean. If your situation is at all complex (and most things that look simple are not), please do see a competent, experienced professional. In the interim, this book may be the cheapest lawyer’s time you will ever buy. I encourage you to learn more and look before you leap!
Elizabeth Schwartz is an attorney, activist, author of Before I Do: A Legal Guide to Marriage, Gay and Otherwise (The New Press, 2016), co-chair of the national board of SAGE and member of the National Center for Lesbian Rights’ National Family Law Advisory Council