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Same-Sex Marriage Legal Pros and Cons

The state of same-sex marriage is constantly changing. If you live in a state that allows same-sex marriage, or a similar legal union, there are many complex issues you have to evaluate before deciding whether it is right for you and your partner. Even if you live in a state with lesser domestic partnerships, many of the same issues apply. Here are some legal considerations you may want to think about before taking the plunge.

Legal Pros:

Children and Your Rights

If you plan on having or raising children, your status as a couple greatly affects your rights regarding your children. In marriage, both partners have the same rights and responsibilities. In a divorce, both partners can seek custody and visitation rights like any married couple. Upon death, the remaining parent automatically becomes the primary legal parent.

Absent marriage, same-sex couples can sometimes turn to adoption in order to gain the rights of legal parents. In some states, same-sex couples can jointly adopt a child. In other states, one partner can legally adopt the biological child of his or her partner through domestic partner or stepparent adoption.

Joint Property Rights

Marriage generally creates a presumption of joint ownership of property accrued during the marriage. The presumption is the opposite for unmarried couples, where your property will be presumed to be owned by whoever acquired it. Deciding which presumption works best for you and your partner can be helpful in deciding whether or not to get married.

Death and Taxes

Marriage creates a legal framework for dealing with issues that result from death, whether regarding property, parental rights or taxes. To create these effects as an unmarried couple, significant time and expenses will have to be spent establishing a similar relationship by contract. Even then, some things can't be recreated through contract, such as freedom from inheritance and gift taxes.

Another issue to keep in mind is the host of property-transfer taxes that by default don't apply to married couples, but do apply to unmarried couples. It can make moving assets around in a cost efficient way very difficult for unmarried couples.

The U.S. Supreme Court ruled in 2013 that DOMA's provision limiting federal benefits (such as surviving spouse Social Security claims) to married heterosexual couples is unconstitutional.   

Government Benefits

This is one of the largest reasons to get married, because the government provides a lot of benefits exclusively to married couples. A small sample of these benefits include Social Security benefits, health care benefits, nursing home care, and unpaid leave from your job to care for family members. Federal benefits should generally be available to legally married same-sex couples in light of the Supreme Court's 2013 ruling invalidating the Defense of Marriage Act. However, state benefits may only be available in states that allow same-sex marriage.

Immigration

Typically, legal marriage is the most reliable way to become a citizen in the U.S. Since certain provisions of the Defense of Marriage Act were overturned in 2013, the federal government now recognizes the validity of same-sex marriages. This may open avenues in the immigration arena previously unavailable to legally married same-sex couples.

Legal Cons:

Formalities

Marriage, for all of its pros and cons, requires that certain formalities be performed, which may or may not be what you want. Unmarried couples can get together, and break up, without all the formalities (and court hearings) required for married couples.

Dividing Your Property

One of the effects of marriage's joint property status is that if you divorce, regardless of who is at fault, both partners are often entitled to half of the property accumulated during the marriage, depending on whether the divorce occurs in a community property state. Note that this also applies to liability for debts. As a result, many former couples become embroiled in costly legal battles over the division of assets in divorce. For unmarried couples, on the other hand, each partner typically leaves with whatever they accumulated and responsibility for debts in their name. However, married couples have a right to seek alimony, whereas unmarried couples may have to account for this in a pre-marriage agreement.

Decide What Is Best For You and Your Partner

Given all of the above issues and factors, spend some serious time with your partner considering same-sex marriage legal pros and cons. If immigration status isn't an issue, you plan on raising kids, and you're ok with taking on the other partner's debts, then getting married may make sense. On the other hand, if immigration status is an issue, you don't necessarily want to be burdened with the other person's debts, or institutional marriage just isn't for you, then it may not be right for you.

One final consideration involves the constant state of flux on the laws covering same-sex marriage. The lists of which states support it, which have a marriage-like option available, and which states have rejected same-sex marriage is constantly changing. For instance, in California, same-sex marriage was first required by state courts, then overturned by popular vote, and then again re-established via federal court rulings. If you have decided to get married, waiting too long may cost you that option. Finally, always consider consulting a lawyer who is familiar with same-sex marriage and similar laws in your state.

Next Steps
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