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If You Can Marry, Should You?
From the Nolo.com Marriage & Living Together Center.
If same-sex marriage is ever legalized, you and your partner will need to decide whether marriage is right for you. Here are some
things to think about before you pop the question.
If you have children or hope to raise a family, marriage is probably the right option. Married couples by law have equal rights to raise
their children, as well as equal obligations of support. In a divorce, both parents can seek visitation and custody, and if one parent
dies the other one steps right in as the primary legal parent. It is nearly impossible to make these sorts of arrangements absent a
legal marriage.
Marriage isn't a prerequisite for owning property together, but if you get married, in most situations in most states your property will
be jointly owned regardless of who pays for it. This is the reverse of the presumption that applies to unmarried couples. Getting
married may be the most efficient way of establishing a property merger -- though if keeping things separate is more to your taste,
you will have to sign a prenuptial agreement to avoid the joint ownership presumptions of a legal marriage.
In most states, each married spouse's earnings are owned by the two of you, and if the marriage breaks up -- regardless of who's at
fault -- you each generally get half of everything you've accumulated. By contrast, if you are unmarried, your property is co-owned
only if you have an agreement to that effect; likewise for debts and obligations. Divorcing couples are also entitled to demand alimony
if the marriage doesn't last, without the need for any explicit contract providing for post-separation support.
Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action, and quite often
the help of a lawyer. Unmarried couples can break up informally, on their own terms.
Absent a legal marriage, a couple needs to sign several agreements to create even a partial framework of protection in the event of
death, and certain tax benefits are forever denied to unmarried couples. If you are married, however, the surviving spouse generally
inherits all the property if the partner dies without a will. At death, a bequest from one spouse to another is tax free, regardless of its
size.
Transfers of property upon dissolution of the relationship are also tax free for legally married couples, but not for unmarrieds.
Marriage can bestow a bevy of important benefits, including military or Social Security benefits, health care, and nursing home
coverage. Marriage may also qualify you for unpaid leave from your job under the Family Leave Act. But watch out -- a married
person's income could disqualify a spouse from receiving Social Security, welfare, or medical benefits she'd receive if she was
unmarried.
A legal marriage is the only reliable method of providing a foreign lover with the privileges of immigration to this country, when he
doesn't qualify under work or other provisions of the Immigration Act.
If you are ever allowed to make this difficult decision, first decide whether you fall into one of the got-to-marry or better-not-marry
situations. Raising kids, courting a foreign lover, or facing a serious illness, for example, generally favors a marriage (unless it
disqualifies you for Medicaid), whereas getting saddled with your partner's debts or losing Social Security benefits probably favors a no
vote.
If you don't fall into either extreme, take a close look at the marital property rules for your particular state, evaluate the benefits given
your personal situation, and get a good sense of what being married would do for you financially. Then consider whether being
married feels right for both of you emotionally. If the answers come back positive for both of you, then proceed, but consider creating
a prenuptial agreement if any aspect of the traditional marriage structure doesn't meet your needs. If the impact of marriage feels
unduly negative for one or both of you, however, hold off. The push for legalizing same-sex marriage isn't likely to make marriage
mandatory.
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