To Wed or Not to Wed…that is the question now that same sex couples can marry…

Now that the United States Supreme Court has decided the landmark case of Obergefell v Hodges, 135 S.Ct. 2584 (June 26, 2015), LGBT or same sex couples can marry—not only in Michigan but anywhere in the United States. They can marry in other countries and have their marriages recognized in the United States as was the custom for heterosexual couples. This ruling, however, does not end the age-old discrimination experienced by same sex couples. For example, a new spouse can adopt his/her other spouse’s child now—but that child may be ten (10) years old already. The opportunity to adopt the child as an infant is lost. A spouse can claim benefits based on the other spouse’s earnings under the Social Security Act—if the two people have been married more than ten (10) years. Since Obergefell was just decided in June 2015, this “right” will not accrue for another decade.

Meanwhile, we continue to live in a society where “marriage matters.” You have to marry to have rights to your partner’s retirement account—or to exercise rights under the Family Medical Leave Act—or to get a “green card” if you are an immigrant—or to file a joint tax return. You have to marry to get spousal support in a divorce proceeding.

And there is the issue of children. In Van v Zahorik, 460 Mich. 320 (1999), the Michigan Supreme Court held that some people have semi-parental rights to children if they meet certain criteria. That equitable parent doctrine was set forth originally in Atkinson v Atkinson, 160 Mich App 601 (1987), and re-stated in Van v Zahorik:

Therefore, we adopt the doctrine of equitable parent and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

This equitable parent doctrine helped lots of step-fathers retain relationships to their step-children after a divorce, but it did not help the parties in the Van v Zahorik case because the parties there were never married. The issue was not whether the parties “could” marry but whether they “did” marry. As a result of this case law, same sex couples who raised children together were at risk if they broke up since one of the partners was often the child’s biological (and therefore “legal”) parent, and the other was not. Presumably, this case (standing alone) should be an incentive for same sex couples with children in their home to marry each other.

Unfortunately, that is not the end of the story. The divorce law that applies generally will undoubtedly apply to this new group of married people. If the “marriage” is relatively short, then the partner with the lower income (or no income) may not get spousal support. If most of the retirement benefits accrued prior to the “marriage,” then the other partner will get little of that asset in a divorce. If the partners had separate property before the “marriage” and then kept that property in his/her own name after a divorce, then the court will award the pre-marital asset to the spouse who owns it and only a part of any “active appreciation” to the other spouse in a divorce.

One way around this is to consider a pre-nuptial agreement that will direct a court, in a divorce, to consider the length of time the parties co-habited as the “length of the marriage” when it comes to spousal support—and ditto for retirement benefits. The problem here is that parties cannot impose agreements on the Social Security Administration or other agencies.

Hopefully, the fact that the Supreme Court decided this case will not result in a race to get married without considering all of the ramifications. You can sign a “pre”-nup before you are married but not afterwards (unless you are on the verge of a divorce and want to settle the issues before filing for divorce). It takes much time and thought to divine a couple’s intent, consider the options and alternatives, negotiate, and then sign a binding agreement. Failing to consider these options could be catastrophic in certain cases and possibly fatal to otherwise loving relationships.

Same sex couples face special challenges even now. They are wise to consult an attorney before marrying. If they decide not to marry even though they could, they still should consult an attorney to discuss a partnership agreement with regard to assets and estate planning.

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