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IntroductionWhen Massachusetts same-sex couples began to marry in May, 2004, couples from other states traveled to the Commonwealth to marry too. Massachusetts Court DecisionsGLAD represented couples from Rhode Island, Vermont, New York, Connecticut, Maine, and New Hampshire in a legal challenge (Cote-Whitacre vs. Department of Public Health) to Romney’s ban. In March 2006 the Massachusetts Supreme Judicial Court (SJC) issued a decision clarifying both which non-residents can marry in Massachusetts going forward and the marital status of those non-residents who married before the SJC clarified the law.1 Upon review of these court decisions, on July 18, 2007, the Commonwealth of Massachusetts, acting through its Department of Public Health and its Registry of Vital Records and Statistics, corrected its instructions to municipal clerks on the handling of marriage applications from same-sex couples from New Mexico. This notice confirms that New Mexico’s laws do not prohibit marriage between parties of the same gender and provided municipal clerks with the authority to process marriage license applications from same-sex couples from New Mexico. How Couples Can Determine Their StatusMassachusetts never should have tried to ban couples from Rhode Island, New York pre-July 6, 2006, and New Mexico from marrying in Massachusetts, and any of these couples who were given marriage licenses without expressing an intent to move to Massachusetts are validly married as a matter of Massachusetts law. Most questions about status can be addressed with answers to two questions: Out-of-State Same-Sex Couples Who Did Not Indicate an Intent to Live in MassachusettsAccording to these decisions, what is the status of the marriages of same-sex couples who reside elsewhere and said they would continue doing so on their marriage applications? It depends on the state each couple lived in when they applied for a marriage license – that is, it depends on the couple’s “home state.” For out-of-state couples who have already married in Massachusetts without indicating an intent to reside in Massachusetts, here are the three possibilities:
Each of these categories is discussed in turn below. "Void Home States": Arizona, Arkansas, Delaware, Indiana, Kansas, Kentucky, Maine, Minnesota, Mississippi, Montana, Ohio, South Carolina, Tennessee, Texas and UtahA “void” home state, as defined by the March 2006 SJC decision, is a state whose marriage licensing laws say that a marriage entered by a same-sex couple at home would be “void.” 3 The Court addressed only Maine specifically as a “void” state, but in GLAD’s estimation, all 15 states named above fall into that category. Can couples from "Void Home States" marry in Massachusetts?No. Under the March 2006 SJC decision, same-sex couples who live in one of these 15 “void” states (and intend to continue living there after their marriage) are not allowed to marry in Massachusetts. If a same-sex couple from a "Void Home State" married in Massachusetts without expressing an intent to relocate to Massachusetts afterwards, what's the status of the marriage right now?The resulting marriage is considered invalid from its very inception -- i.e., “void.” In the words of the SJC, it is “an absolute nullity and is not entitled to any recognition or legal status” in Massachusetts.4 Couples who fall into this category were, in effect, never legally married as a result of the SJC’s March, 2006 decision. Do couples in this situation need to do anything to clarify their newly acquired non-marital status?Because the SJC made clear that Maine is a “Void Home State,” same-sex couples from Maine who married in Massachusetts while intending to return home do not need further legal process to dissolve their marriage. The SJC decision effectively dissolved their marriage by declaring it never existed to begin with. Yes. All same-sex couples whose marriages were voided by the Cote-Whitacre decision are not married and thus may marry in a jurisdiction that allows same-sex couples to marry (e.g., Canada). If the other jurisdiction seeks proof of the effective dissolution of the Massachusetts marriage, or its non-existence by operation of law, couples can direct others to pages 359-360 of the Cote-Whitacre decision as proof that they were never legally married as far as Massachusetts is concerned. "Prohibited Home States": Alabama, Alaska, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Louisiana, Maryland, Michigan, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York (ONLY from July 6, 2006 forward), North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Vermont, Virginia, Washington, West Virginia, Wisconsin, and WyomingIn its March, 2006 decision, the SJC made clear that Connecticut, Vermont, and New Hampshire are “prohibited" home states -- states whose marriage licensing laws prohibit same-sex couples from marrying but do not go so far as to declare such marriages to be “void.” In GLAD’s estimation, the other states named above would also be considered “prohibited” states. Can couples from “Prohibited Home States” marry in Massachusetts?No. Under the SJC’s March, 2006 decision, same-sex couples who live in one of these “prohibited” home states will not be allowed to marry in Massachusetts unless they indicate an intent to reside in Massachusetts after marrying. If a same-sex couple from a “Prohibited Home State” married in Massachusetts without expressing an intent to relocate to Massachusetts, what’s the status of the marriage right now?If a Massachusetts municipal clerk allowed such a couple to marry in Massachusetts, the resulting marriage is presumed to be valid (“presumptively valid”) and “should for all legal purposes be treated as a valid marriage” unless it is annulled or declared invalid by a court.5 In Massachusetts, only parties to the marriage itself can ask a court to dissolve or annul a “voidable” marriage. If one spouse passes away before the marriage is annulled or invalidated by a court, the death would usually end any opportunity to have the marriage declared invalid or annulled. Third parties, like private employers or relatives, cannot ask a court to annul or invalidate the marriage in this situation. How will states outside Massachusetts treat a “voidable” marriage entered in Massachusetts? Consistent with its own laws and constitution, each state holds the power to decide whether to recognize, in whole or in part, a marriage legally celebrated in another state. This is true for valid marriages, as well as voidable ones. The longstanding legal tradition has been that states respect marriages legally celebrated in other jurisdictions. Some states have chosen a different path vis-à-vis the legal marriages of same-sex couples through the enactment of discriminatory marriage laws and constitutional provisions. For the most part, how these discriminatory laws will operate in the case of valid and voidable marriages from another state remains to be seen. Certainly, governmental respect may be non-existent or inconsistent, respecting families for purposes of some programs, but not for others. It is nearly impossible to predict what marital protections will be available under what circumstances in any given state or instance. Just because your home state may refuse to provide you a particular spousal benefit does not mean that your marriage is invalid under Massachusetts law. Also, many employers, communities, and businesses may respect the marriages of same-sex couples even where the home state may not. Do couples in this situation need to go to court to clarify their marital status?Not unless they want to dissolve their relationship, in which case they will need to go to court to bring an end to the legal relationship. Can couples with voidable marriages marry again elsewhere?A couple may have the desire to transform their “voidable” marriage into a marriage without any defect, by, for example, getting married again to the same person in Canada, but we do not have information about whether this may be possible. Under Canadian marriage law, an applicant cannot be currently married. However, it’s not clear whether this precludes one from re-marrying the same person. Canada might require the couple to get divorced (or presumably have the marriage otherwise invalidated) before marrying each other again in Canada. Couples who try to marry again in Canada should be careful not to deny their existing marriage because that would only create a cloud over the second marriage. If you are interested in pursuing this potential option, you should call the Canadian locale where you seek to marry to confirm that it will allow you to marry under these circumstances. "Silent or Ambiguous Home States"The March 2006 SJC decision spoke to states whose marriage licensing laws are silent or ambiguous on the question of marriage because they do not expressly allow or expressly prohibit same-sex couples from marrying there. A further court decision determined that Rhode Island is a “silent or ambiguous home state,”and that New York was a “silent or ambiguous home state” between the dates of May 17, 2004 and July 6, 2006 (but not thereafter). Also, in July 2007, the Massachusetts Department of Public Health determined that New Mexico fits this definition. Can same-sex couples from "Silent or Ambiguous Home States" marry in Massachusetts?Yes. According to the March 2006 SJC decision, Massachusetts law does not bar same-sex couples from states that do not, through marriage licensing statutes, constitutional amendments or controlling judicial decisions, expressly prohibit those couples from marrying at home. Going forward, couples who reside in Rhode Island and New Mexico can marry in Massachusetts without expressing an intent to reside in Massachusetts. What's the status of New York couples' current ability to marry in Massachusetts?In the September 2006 trial court decision, a Massachusetts trial judge held that New York same-sex couples are not able to marry in Massachusetts due to the New York Court of Appeals July 6, 2006 decision in Hernandez v. Robles. That New York decision stated that same-sex couples are prohibited from marrying in New York, thus closing the door on New York same-sex couples’ ability to marry in Massachusetts going forward from the effective date of the Hernandez opinion. New York is thus placed in the “prohibited” category going forward. What’s the status of New York couples who already married in Massachusetts -- between May 17, 2004 and July 6, 2006 -- without expressing an intent to relocate to Massachusetts?A recent court ruling held that New York same-sex couples who married during this period of nearly 2 years (without saying they intended to reside in Massachusetts) should have been perfectly able to do so without any interference from the 1913 law. For more information, please see GLAD’s publication, Legal Issues for New York Same-Sex Couples Who Married in Massachusetts at:http://www.glad.org/marriage/Cote-Whitacre/NYCouplesMarriedinMA.pdf. If a same-sex couple from a “Silent or Ambiguous Home State” married in Massachusetts without expressing an intent to relocate to Massachusetts, what’s the status of the marriage?Once a Massachusetts court or agency confirms that the couple’s home state is a “Silent or Ambiguous Home State,” the marriage should be valid. This is true already for Rhode Island and New Mexico couples who truthfully disclosed their non-resident status when they married. The same is true for New York couples who married before Hernandez – that is, before July 6, 2006. Out-of-State Same-Sex Couples Who Indicated an Intent to Move to Massachusetts But Haven't MovedWhat is the status of our marriage if we were residing in a “void” or “prohibited” home state when we married in Massachusetts, and we indicated an intent to reside in Massachusetts but haven’t? Massachusetts has always permitted out-of-state same-sex couples to marry in Massachusetts so long as they expressed an intent to reside in Massachusetts afterwards. These marriages are presumed to be valid. It is always good for couples who expressed an intent to relocate to Massachusetts at the time of their marriage to be able to prove the truthfulness of their intent. The safest course for couples in this predicament is to follow through on their stated intent by, for example, actually moving to Massachusetts. At a minimum, preserving evidence of the steps the couple may have taken to relocate to Massachusetts (e.g., evidence of a job/house search, transfer of bank accounts, etc) is also a good idea, especially if the couple does not end up making the move due to changed factual circumstances. Negative consequences may flow from a couple’s inability to prove the truthfulness of their stated intent. If the question were ever called, a couple unable to prove the truthfulness of their intent may be deemed to have married based upon a fraudulent statement of intent. This creates a defect in the marriage if the fraudulent statement was central to the couple’s ability to marry6. In this worst case scenario -- i.e., where a couple marries after falsely stating an intent to relocate to Massachusetts -- the marriage might be deemed “voidable.” (For a more detailed discussion of “voidable” marriages, see the questions and answers for the marriages of couples from “prohibited” states above). Nevertheless, until a court annuls the marriage or declares it to be invalid, it is presumed to be valid. You should also know that acquiring a license under false pretenses may expose the couple to a fine of up to $1007, and it could cast a legal cloud over the marriage outside Massachusetts, making it harder to obtain respect for your marriage elsewhere. What is the status of our marriage if we were residing in a “silent or amibiguous” state (i.e., Rhode Island, New Mexico or New York pre-July 6, 2006)” when we married, and we indicated an intent to reside in Massachusetts but haven’t? Though the matter is not free of doubt, there is reason to believe that those marriages are valid from Massachusetts’ perspective – whether or not the couple can demonstrably prove that their intent was truthful at the time it was made – because the statement of intent should never have been demanded from those couples. Thus, even a false statement concerning the couple’s intent would not be deemed central to the couple’s ability to marry in Massachusetts8. Other Steps Same-Sex Couples Can Take to Protect Their FamiliesIf I have a valid marriage, do I still need to take additional steps to protect my family?Yes. Although getting married is a wonderful step towards achieving the protections and benefits that different-sex married couples enjoy, because of the discrimination that exists against same-sex married couples both at the federal level and that must be anticipated at least in most states outside Massachusetts, GLAD strongly recommends that you consult with legal planning professionals in your home state about additional steps that you can take to protect your family. Some of the documents you may wish to consider are:
DivorceWhat happens if we want to end our relationship and the SJC’s March 2006 decision already declared our marriage “void”?A same-sex couple from a “void” state that truthfully indicated when they applied for their marriage license that they had NO intention of becoming Massachusetts residents need not take any further legal action to dissolve the relationship because the March 30, 2006 decision of the SJC effectively dissolved the marriage already. What happens if we have a valid or “voidable” marriage and we decide to end our relationship?If a couple who married in Massachusetts reaches the point where they have decided to dissolve their relationship, the couple must divorce to end the marriage. The problem is that if they live in a state that doesn’t recognize the marriage, then it is uncertain whether that state will grant the couple a divorce. The only state that we are certain will grant a divorce is Massachusetts, but there is a divorce case of a same-sex married couple pending in Rhode Island that will determine whether same-sex couples can divorce in that state and, since New Jersey and New Hampshire have indicated that they will recognize the marriage of a same-sex couples as equivalent to a civil union, it should be possible to dissolve the marriage in those states as well. Massachusetts requires 1 year of residency in order to begin divorce proceedings, and so this obviously can pose serious problems for out-of-state couples who wish to end their relationship. There may be some legal steps that the couple can take in their own state to limit the future impact of the marriage, but the marriage itself will remain in force until the couple divorces or the marriage is annulled. For more information about divorce see GLAD’s publication, Separation, Divorce and Marriage Equality. Where to Go if You Still Have Questions or Need Legal AdviceGLAD and its sister organizations -- Lambda Legal, the National Center for Lesbian Rights (NCLR), and the American Civil Liberties Union (ACLU) Lesbian Gay Bisexual Transgender Project – are working hard to provide accurate, current information about legal issues that affect same-sex married couples.
This document is intended to provide general information only and is not intended to provide legal advice as to anyone’s specific situation. Moreover, the law is constantly changing and this publication is based upon the information that is known to us as of this printing. For guidance on your particular situation, you must consult a lawyer. You should not act independently on this information. The provision of this information is not meant to create an attorney-client relationship.
1Cote-Whitacre v. Dept. of Pub. Health, 446 Mass. 350 (2006). back 2See Hernandez v. Robles, 7 N.Y.3d 338 (2006). back 3Cote-Whitacre v. Dept. of Pub. Health, 446 Mass. 350, 359 (2006) (discussing fact that Maine is a “void” home state for purposes of G.L. c. 207, §11) (Spina, J.); id. at 363 (distinguishing states whose marriage licensing laws expressly declare marriages “void” from those who merely prohibit them by designating them “not permitted, not recognized, not valid, or the like”); id. at 388 (Marshall, C.J.) (making clear that G.L. c. 207, §11 bars only marriages where the marriage licensing laws “explicitly provide[] that particular marriages are ‘void’.”). back 4Cote-Whitacre v. Dept. of Pub. Health, 446 Mass. 350, 359 and 359 n. 8 (2006) (discussing, in the context of Maine law, that G.L. c. 207, §11 renders “null and void” the marriage of any couple hailing from a state that would declare their marriage “void” if contracted there). back 5Id. at 361 n. 10 and 362 n. 11. back 6See Cote-Whitacre v. Dept. of Pub. Health, 446 Mass. 350, 361 n. 10 (citing Reynolds v. Reynolds, 85 Mass. 605, 609-11 (1862) (“[F]raud that goes to the essence of a marriage contract renders a marriage ‘voidable’.”) back 7M.G.L. ch. 207, § 52. back 8See footnote 6. back
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