Marital Status? For Some LGBTQ Couples, It’s Complicated

Your Guide to State, Local, Federal, Estate + International Taxation

On June 26, 2013, the U.S. Supreme Court, in the Windsor case, struck down Section 3 of the federal Defense of Marriage Act (DOMA) as unconstitutional. As a result, the federal government is required to recognize marriages between same-sex couples as long as the marriage was validly performed and recognized by the couple’s state of residency. Since then, several states have legalized same-sex marriage, including Arizona on October 27, 2014. Currently, 36 states plus the District of Columbia recognize marriages between spouses of the same sex. Still the question of whether or not a couple is married is not always an easy one to answer.

A number of states had brief windows of time where same-sex marriages were performed legally, then ceased. For example, Utah issued marriage licenses from December 20, 2013 through January 6, 2014. Issuance was halted from January 6, 2014 until October 6, 2014 following the resolution of a lawsuit challenging the state’s ban on same-sex marriage. The U.S. Supreme Court refused to hear an appeal from the state of Utah on October 6, 2014, and the state began issuing licenses again. There are several states with similar scenarios.

In addition, many states that now have marriage equality previously had civil unions or domestic partner registrations. The federal government has stated that they will only recognize marriage, but some states may recognize a marital-like status that is not marriage but has many of the rights and responsibilities of marriage. California and New Jersey have both marriage and civil unions or registrations. Massachusetts recognizes civil unions as marriages. Thus a couple who entered into a civil union in Vermont will be treated as married for purposes of Massachusetts law, whether or not they intended to enter into marriage. In Connecticut and Washington, civil unions were automatically converted to marriages unless the couple “opted out.”

The tumultuous state of same-sex marriage in the United States over the past several years has led to some interesting issues when determining a couple’s marital status. Some couples living in states that did not allow same-sex marriage would, either for fun or as a political statement, hop on a plane to another state that did allow civil unions or marriage and perform a ceremony. Returning home to a state that did not recognize the marriage, in a country that did not afford them any of the rights and responsibilities of a legal marriage, the couple may or may not have realized their vows would carry legal weight in the future.

To illustrate: James and John were residents of Arizona when Connecticut enacted a civil union law in 2005. They visited Connecticut in 2006 and had a civil union ceremony performed. Returning home to Arizona, their civil union was not recognized by their home state or the federal government. They are unaware that their Connecticut civil union was given a “free upgrade” to marriage in 2010. The couple split up in 2011. Even if they were aware that they were then considered married by the state of Connecticut, they couldn’t file for divorce in Arizona because their marriage was not recognized here. They couldn’t file for divorce in Connecticut because that state had a twelve month residency requirement. In 2015, James wants to marry his partner of three years, Peter. Hopefully James can track down John and get a divorce first; otherwise he’ll be committing bigamy. In addition, James and John will probably need to get in touch with their CPA to file amended tax returns for the past several years, because they most likely filed using a Single status when they should have been filing Married Filing Joint or Married Filing Separately.

By Janet Berry-Johnson, CPA