Marriage | Vermont

Yes. On April 7, 2009, Vermont became the first state to obtain marriage rights for same-sex couples through a legislative process rather than a court case.  The bill, S.115 An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage (the “Marriage Act”) (See An Act Relating to Civil Marriage at:  http://www.leg.state.vt.us/docs/2010/bills/Passed/S-115.pdf), was passed by the legislature on April 3, 2009; vetoed by the Governor on April 6, 2009; and the veto was overridden by the Senate (23-5) and the House (100-49) on April 7, 2009.  The Marriage Act took effect on September 1, 2009.

This was the result of nearly 15 years of relentless work by Vermont Freedom to Marry, under the leadership of Beth Robinson. GLAD was pleased to have been able to provide some assistance and support to the effort.

Six years later, in Obergefell v. Hodges (135 S.Ct. 2584 (2015)), the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs during oral arguments. Post-Obergefell, all 50 states are required to issue marriage licenses to same-sex couples, and all states must respect the marriages of same-sex couples performed in other jurisdictions.

The process for getting married in Vermont requires the following basic steps:

1. an eligible couple submits an application for a license in either the town or city in Vermont where one of the parties lives (out-of-state couples can go to any town or city clerk) (18 V.S.A. § 5131(a)(1));
2. the couple must pay the applicable fee and receive a marriage license from the clerk;
3. the couple must have the marriage solemnized (i.e., have a ceremony) within 60 days of filing the application (18 V.S.A. § 5131(b));
4. once the ceremony has been performed, the person who performed it has 10 days to send the license back to the city or town where it was issued (18 V.S.A. § 5131(c)); and
5. the clerk will then file the original (18 V.S.A. § 5131 (c)), and the couple can receive an official certificate of their marriage.

The detailed process for getting married in Vermont, whether you should enter a marriage, and what it all means are questions that are addressed in GLAD’s publication, How To Get Married In Vermont, at https://glad-org-wpom.nyc3.cdn.digitaloceanspaces.com/wp-content/uploads/2017/01/how-to-get-married-vt.pdf.

Yes. Thanks to Obergefell v. Hodges, all states are required to issue marriage licenses to same-sex couples.

Yes. Vermont will respect the legal marriages of same-sex couples regardless of where the marriage was performed, just as all states will now respect the marriage of a same-sex couple married in Vermont.

Yes. Thanks to the recent demise of the Defense of Marriage Act (DOMA) in Windsor v. United States (133. S.Ct. 2675 (2013)), the federal government will recognize and respect the legal marriages of same-sex couples.

DOMA, a federal statute which defined marriage exclusively as the union between one man and one woman, once prevented same-sex spouses from accessing the 1000+ federal laws pertaining to marriage, including taxes, Social Security (including SSDI and SSI), immigration, bankruptcy, FMLA, federal student financial aid, Medicaid, Medicare, veteran’s benefits, and TANF. Happily, in 2013 the U.S. Supreme Court struck down DOMA as unconstitutional. GLAD filed the first challenge to DOMA in 2009, Gill v. OPM (699 F.Supp.2d 374 (2010)), and the legal framework developed in that case was used in many subsequent cases, Windsor included. GLAD was also responsible for coordinating the Windsor amici briefs.

Unfortunately, one issue that has yet to be definitively resolved by Windsor and Obergefell concerns spousal benefits and self-insured health plans. While New Hampshire state law prohibits discrimination based on sexual orientation, self-insured health plans are governed by federal law. Title VII, the federal anti-discrimination statute, only prohibits discrimination based on race, color, religion, sex, or national origin—sexual orientation is not explicitly included. As a result, some self-insured employers claim they can legally deny benefits to same-sex spouses.

Luckily, this issue is far from settled. Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) took the position that Title VII’s prohibition against ‘sex discrimination’ encompasses discrimination based on sexual orientation (see Baldwin v. Foxx, Agency No. 2012-24738-FAA-3 (July 15, 2015)).

If your employer is discriminating against you in spousal healthcare benefits on the basis of sexual orientation, contact GLAD Answers.

There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.

1. Relationship Agreement or Contract: Cohabitation agreements regarding property and finances provide a way for couples to sort out their affairs in writing before a separation. This kind of document serves a similar function to a prenuptial agreement. As long as the contract is not about sexual services and complies with the requisites for a valid contract, it has a good chance of being upheld as valid. Bear in mind that, as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements)

2. Power of Attorney: Any competent person may appoint another person (such as one’s partner) as their “attorney-in-fact” for financial matters in the event the person becomes incapacitated or disabled.

This power of attorney can be extended to the time when the person is incapacitated if the power of attorney says, “This power of attorney shall not be affected by the subsequent disability or incapacity of the principal.” If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A power of attorney does not include authority to make health care decisions.

A person may also indicate their preference regarding the appointment of a guardian — a longer-term appointment that applies to all areas of a mentally incapacitated person’s personal care and financial affairs (and courts consider the preference of the incapacitated person in appointing a guardian). The document indicating this preference should be executed with all of the formalities of a will and should be updated to keep track of all aspects of a person’s personal and financial situation.

3. Advance Directives for Health Care and Disposition of Remains: Under Vermont law, an individual may appoint an agent to make health care decisions for them upon incompetence, incapacity, or death and provide the agent with an advance directive that, for example, can:

a. direct the type of health care desired or not desired;

b. direct which life-sustaining treatments are desired or not desired;

c. identify persons with whom the agent should not consult or share information;

d. authorize the release of health information to other persons in addition to the agent;

e. make an anatomical gift pursuant to Vermont law;

f. nominate persons to serve (or not serve) as the individual’s guardian should that be needed;

g. direct the disposition of the person’s remains and the funeral arrangements.

Without an advance directive, medical providers and funeral directors look to a spouse or next of kin to make decisions. The advance directive can be revoked at any time by creating a new advance directive or by a clear expression of revocation. People often give a copy of their advance directive to their doctors and sometimes to family members.

4. Will: If a person who is neither married nor joined in a civil union, dies without a will, their property passes to: (1) their children or (2) their family. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can nominate the future guardian of the children in a will.

GLAD recommends working with an attorney on these documents.

Although forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to better help effectuate your goals, for example, by drafting a will in a way that is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific instructions. In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.

Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.

However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.

To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security, and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security). 

These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9-month requirement was because of the discriminatory state laws.

The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit:

Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal

After Obergefell v. Hodges, same-sex spouses everywhere should be able to dissolve their marriages on the same terms as different-sex spouses. Vermont applies its divorce statutes to same-sex couples (See generally Solomon v. Guidry, 2016 VT 108, 155 A.3d 1218 (2016)).  However, spouses should note that when Vermont courts divide marital property and award alimony/maintenance, one of the factors a judge considers is the length of the marriage (15 V.S.A. § 751(b)(1)(division of property) and §752(b)(4)(maintenance)). Nonetheless, the court does include, as marital property, all property owned by “either or both of the parties, however or whenever acquired ….” (15 V.S.A. § 751(a)). So, for spouses whose partnership pre-dates marriage equality, the length of the marriage may not accurately reflect the true length of the relationship, resulting in an unbalanced division of assets.

If you are going through divorce proceedings in Vermont and believe your division of assets may be unfairly affected by length of marriage, contact GLAD Answers.

Same-sex couples with children who are breaking up should:

1. Support the rights of LGBTQ+ parents;
2. Honor existing relationships regardless of legal labels;
3. Honor the children’s existing parental relationships after the breakup;
4. Maintain continuity for the children;
5. Seek a voluntary resolution;
6. Remember that breaking up is hard to do;
7. Investigate allegations of abuse;
8. Not allow the absence of agreements or legal relationships to determine outcomes;
9. Treat litigation as a last resort; and
10. Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families.