Obergefell James - Before I Do A Legal Guide to Marriage, Gay and Otherwise

Elizabeth F. Schwartz has been practicing law since 1997 and is one of the nations best-known advocates for the legal rights of the lesbian, gay, bisexual, and transgender community. Her law practice focuses on family formation (adoption, insemination, and surrogacy), divorce, estate planning, and probate. Schwartz lives in Miami.

elizabethschwartz.com

@SchwartzOutLaw

Jim Obergefell has held a variety of corporate jobs in training and technology. He is the named plaintiff in Obergefell v. Hodges. Politico named him one of the fifty top visionaries of 2015. He lives in Washington, D.C.

2016 by Elizabeth F. Schwartz

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No part of this book may be reproduced, in any form, without written permission from the publisher.

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Published in the United States by The New Press, New York, 2016

Distributed by Perseus Distribution

ISBN 9781620971550 (e-book)

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Names: Schwartz, Elizabeth F.

Title: Before I do: a legal guide to marriage, gay and otherwise / Elizabeth F. Schwartz.

Description: New York; London: New Press, [2016] | Includes index.

Identifiers: LCCN 2016014074

Subjects: LCSH: Same-sex marriageLaw and legislationUnited StatesPopular works. | Same-sex marriageUnited StatesPsychological aspectsPopular works. | GaysLegal status, laws, etc.United StatesPopular works. | GaysUnited StatesFinance, PersonalPopular works.

Classification: LCC KF539 .S39 2016 | DDC 346.7301 / 68dc23 LC record available at http://lccn.loc.gov/2016014074

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Photograph of Elizabeth F. Schwartz by Alexis Rodriguez-Duarte in collaboration with Tico Torres

Book design and composition by Bookbright Media

This book was set in Bembo and News Gothic Std

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

For my father, of cherished memory

And to Lyd, best of wives and best of women

Table of Contents

CONTENTS

You dont really need to get married, but marriage is awfully nice.

Lily Tomlin

A fter a long battle, the Supreme Court of the United States determined that same-sex relationships are legitimate and worthy of recognition, both at the federal level and in all fifty states. The Obergefell case, decided in June 2015, brought uniformity to a hodgepodge of rights and responsibilities that varied from state to state for same-sex couples. Now we lesbian, gay, bisexual, and transgender (LGBT) people are free to commit to each other under the law of every state, and our commitments must be recognized nationwide.

Not long ago, same-sex couples had to jump through endless hoops to make our relationships akin to a legally recognized marriage. Often we had to work around the law, play the system, and find the loopholes. Denied the right to be at the hospital bedside of our sick partners, some claimed to be siblings and therefore next of kin. When we could not adopt as an openly gay couple, we hid our relationships and adopted children as individuals, not revealing our true families. In some cases we adopted one another, creating a fictional but legal parent-child relationship, just to acquire rights that the law refused to confer on same-sex couples. Creating contracts and using inventive estate planning tools, equality-focused lawyers legitimized our relationships as much as possible. Lawyers accustomed to operating within the confines of the law figured out how to work on the fringes in order to achieve basic protections for gay and lesbian couples within the law.

For the most part, those days are over. We no longer have to operate as outlawsand we can have in-laws! But heres the rub: many LGBT 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 that each and every loving and committed couple ought to marry, an act often considered one of lifes 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 LGBT families create and dissolve relationships in a particularly hostile legal environmentthe 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 this book.

Before I Do is for couples who have been coloring outside the lines and now are considering making their relationship legal. It explains what marriage meansand does not mean. It spells out all the implications of marriage in a straightforward, easy-to-follow style.

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 spouse or potential spouse have debt? Can a creditor come after you for your spouses 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 acknowledgment that a legal marriage is a contract entered into with your state to be governed by the laws and regulations concerning domestic relations, even if some of those laws did not exist at the time of the marriage! One consequence of not fully thinking through the consequences of marriage is shown in the story of Brittney Griner. As you may know if you stood on line at the supermarket near the tabloid rack, Griner is a star basketball player in the WNBA. Her amazing athletic career has been sullied by the circumstances of her brief marriage to another WNBA basketball player, Glory Johnson. Domestic violence charges preceded the marriage, and resulted in both being suspended from play for a record seven games. Just as many different-sex couples have, despite the warning signs, Griner and Johnson married in May 2015. A month later, Johnson announced that she was pregnant. The following day, Griner filed for an annulment; Johnson has requested $20,000 per month child support for the unborn child. It is unclear how the Griner-Johnson union will be dissolved, or whether Griner will be deemed a parent, but it is clear that marriage is not something to enter impulsively or without a full appreciation of the stakes involved and the consequences if the relationship does not work out. This caution applies to all couples, whether same-sex or not.