Marriage - Tips & Traps

Forms – What Am I?

• If you want your marriage to be respected, you should hold yourself out as married – because you are.  That’s not always easy given the amount of discrimination we are likely to see.
• You should never lie on a form, particularly if you must sign it under oath.  
• There may be consequences to filling out forms as single one day and married the next.  For example, tax returns are often requested with mortgage loan applications.  If you filed as single, you will want to have a statement on the form about why you did so (see tax section below).
• Even if other states and the federal government don’t respect your marriage, you can always indicate on a form that you were married in Massachusetts on  X  date.  

Estate Planning – Belt & Suspenders

• Writing a new will (including naming the guardian of your child(ren)) – in part because in most states, a marriage automatically revokes any existing will;
• signing documents authorizing others to make health care decisions;
• signing documents authorizing others to make financial decisions; and
• directing the disposition of your remains.

Estate Planning … In An Uncertain World

• Gain expert advice and use multiple strategies (through wills, trusts, agreements) to ensure your wishes can be met to the largest degree possible no matter what the situation at your death;
• Do tax planning – income tax, gift tax, estate tax – at the state and federal levels; and
• Do Medicaid and long term care planning, concerning issues like assets available to both spouses, asset transfer issues, and liens and estate recovery.

Tax Time  

• Remember that some married people may pay a “marriage penalty” on their income taxes.  Others have a “marriage bonus.”
• You may well be in the position where you file your taxes as “married filing jointly” at the state level and “single” at the federal level.  You may even need to fill out two federal forms – one as married and one as single – so that you can transfer the “married” numbers to your state form even though you won’t file the “married” federal form.
• On federal forms, it may make sense to file as single but to include a cover letter or disclosure form with the tax return.  This would allow you to state you are married and that the only reason you are filing as single is because of federal DOMA (or a state DOMA).  Another alternative is to put an asterisk by the “x” in the “single” box and indicate at the bottom of the form that the taxpayers was married on whatever date he or she was married, and that the taxpayer is saying they are “single” for purposes of income tax filing only.

Credit

Workplace Domestic Partnership Programs

Disqualification From Government Programs

• Medicaid (both for insurance coverage and long-term care; called MassHealth in Massachusetts);
• Cash Assistance for Low Income Families (Transitional Aid to Families With Dependent Children in Massachusetts);
• Subsidized Child Care for Low Income Families;
• Cash Assistance and other General Relief programs for other low income people (Emergency Aid to the Elderly, Disabled and Children in Massachusetts);
• Emergency Shelter for Homeless Families (emergency assistance in Mass.); and
• Food Stamps (eligibility based on household income so it should not be affected if you and your partner were previously seen as part of the same household).

Disqualification From Benefits Obtained Through Deceased Spouse

• Social Security payments based on your former spouse’s earnings;
• Worker’s Compensation benefits for a former spouse killed on the job; and.
• A variety of pension, disability and retirement benefits based on the former spouse’s employment or benefits.

Important Federal Benefits Will Be Unavailable

• will not be eligible to share in each other’s social security;
• will be treated as single in all tax matters (particularly consequential after a death) sometimes requiring people to pay high taxes on their own jointly owned homes;
• will have to accept in a lump sum all inherited IRA’s and 401(k)’s, resulting in a huge tax burden;
• will have no access to veteran’s benefits available to spouses of veterans;
• will not have the ability to transfer property at divorce free of tax consequences, thus making it more difficult (and potentially depleting the couple’s assets) to achieve a fair balance of assets;
• will be unable to freely transfer assets to a spouse with no loss of eligibility for public nursing home care.

Family

Adoption

Parenting In General

Divorce

• You must live in Massachusetts for one year before you can file for divorce and for at least six months until the proceedings may be completed.  People from other states who marry in Massachusetts should be respected as married in their home states, but it is possible that a state will disrespect the marriage, making it difficult to impossible to divorce.
• In most places, divorce requires legal proceedings in which a judge decides or oversees a fair division of property (community or marital property) between the parties and can order support for the ex-spouse as well.
• If a couple has children, the judge will sort out parental rights and responsibilities (including child support obligations) based on the child’s best interests.  
• One party may claim that a particular child is not a child of the marriage and not within the jurisdiction of the court.  It is important to secure the child’s legal status to both parents through adoption or other means and not rely solely on the fact of the marriage.
• In some states, the (mis)conduct of the parties during the marriage (i.e., adultery) can affect the division of property disadvantageously to the party who acted against the marriage.
• Some of the legal rules in place that aid the transfer of property at divorce or provide security during this difficult transition period are not available to same-sex couples because of federal DOMA.  These include rules allowing the house and some other assets to be transferred or sold without tax consequences, the ability to split a pension earned by one party during the marriage (“QDRO”), and the right to continue receiving health insurance coverage through a former spouse.
• Consider a premarital agreement (drafted before the marriage where both parties share all information and are each separately represented by attorneys) if you wish to vary the rules that would otherwise apply at divorce or to handle otherwise complicated tax and property issues.

Military

Immigration/Bi-National Couples

• Even if you marry, you cannot sponsor your non-citizen spouse for legal permanent residence.  Immigration issues are controlled by federal law and the federal anti-gay, anti-marriage law bars protections for same-sex spouses.
• Applying for legal permanent residence based on your marriage to a person of the same sex could lead to deportation if you are out-of-status.
• Simply getting married could cause problems if you are applying for a non-immigrant visa or status like a tourist or student visa.  If you are married, a U.S. immigration official may deny you entry to the U.S. on the grounds that you intend to remain in the U.S. permanently rather than merely temporarily.  Your marriage would be evidence of an intention to remain, i.e, that you are not merely a tourist or student.  
• If an individual misrepresents any information at all, the misrepresentation can bar him or her from future immigration benefits or put him or her at risk for deportation.

THIS LISTING IS NOT COMPLETE.  IT IS NOT LEGAL ADVICE.   PLEASE USE IT TO START THINKING THROUGH THE ISSUES THAT MAY AFFECT YOU AND PLEASE SEEK PROFESSIONAL ADVICE!!

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'Freedom to Marry Rings' image upper right © H. Mitchell.