By John Christianson and Mark Johnson Roberts, Special for PQ Monthly
In May, the federal courts ruled Oregon’s marriage laws invalid under the United States Constitution and ordered that the state begin marrying same-sex couples just like opposite-sex couples. The court decision was great news for Oregon’s LGBT couples, but those couples are now confronted with many legal questions about whether, when, and how to marry. Making a commitment like this requires careful planning, because marriage creates a long-term, complex legal relationship. Here are ten things to think about before saying, “I do.”
- What happens when our relationship ends?
One of life’s truisms is that everything is temporary. Even our relationships will end with death if not before. Knowing that either death or divorce will end our relationship, what steps can we take to see that our wishes are carried out in times of crisis? A lawyer can help a couple contemplating marriage to develop answers to this and other questions.
- What kind of a problem solver is my partner?
This is not really a legal question, but it is so important to your legal affairs that it must be considered. Life seems incredibly happy when we are in love, but real life presents us with a never-ending series of challenges and problems to overcome. How does your partner react to life’s everyday troubles? A person who responds with anger or frustration at minor inconveniences may not be the partner you want to have when a child gets suspended from school. If your marriage were to end in divorce, would your partner still want the best outcome for you?
- Do I need a premarital agreement?
Two of the key characteristics of state-sanctioned marriage are that the state prescribes a standard estate plan and a procedure for getting divorced. LGBT couples, who may have been together for many years before getting married, need to investigate and understand whether the state’s prescribed processes are consistent with the couples’ existing domestic partnership arrangements. Premarital agreements help define who gets what, and can also serve as a tool for creating clarity in a couple’s financial dealings before they get married. Same-sex couples considering marriage should consult with a lawyer to see whether a premarital agreement is appropriate to their circumstances.
- What are we doing with property each of us owns separately?
In some circumstances, property owned by a partner before the marriage can be awarded back to that partner upon divorce, without a corresponding award to the other party. Couples contemplating marriage should consider carefully what their agreement is about such property and make sure that documents of title are exchanged if needed to carry out the parties’ agreement.
- How will my public benefits be affected by our marriage?
“Means-tested” public benefit programs, such as Medicaid and Social Security Supplemental Security Income (SSI), generally will look to both spouses’ resources to determine eligibility. What this means is that marriage may place some public benefits in jeopardy. Careful planning before walking down the aisle is crucial to prevent disqualification or a disruption in benefits.
- Will we have children? How?
Having children or not is a key decision most couples must make. It’s best to talk it out thoroughly before tying the knot. LGBT couples generally must use some kind of assisted reproduction to produce children. Adoptive options can be scarce. In vitro fertilization and surrogacy are viable options, although both are expensive and filled with legal uncertainty. Donor insemination is cheaper but carries its own set of legal difficulties. A consultation with a lawyer skilled in the field of assisted reproductive technology (ART) can be helpful in understanding options. Under no circumstances should you perform your own insemination without talking to a lawyer first.
- Will one of us provide most or all of the other partner’s support?
Many, many couples rely on one partner primarily to keep the home and raise the children. These arrangements affect support obligations and child custody questions in ways that you may not fully understand without talking to a lawyer first. When you get divorced is not the time to realize that you’re going to be paying alimony for the rest of your life.
- How will we handle debt?
A certain amount of debt load (primarily houses, cars and student loans) is common and acceptable in most families, but the buildup of unsecured credit card debt can place a financial and emotional strain on the strongest of relationships. Be sure you understand your partner’s spending and savings patterns and ensure that they are compatible with your own. Also, understand that, by marrying, you become liable for your partner’s basic support needs.
- What if I get an inheritance?
Unlike some states, Oregon has a specific process by which an inheritance or a gift can be kept separate from the marital estate and largely or completely kept by the partner who receives it. Consulting with a lawyer will help you understand how to keep your inheritance largely free of the divorce process.
- What is my estate plan?
In most circumstances, the act of marriage automatically revokes the married couple’s existing wills. All couples contemplating marriage—whether same-sex or opposite-sex—should consider reviewing and updating their estate plans with their attorney.
John Christianson and Mark Johnson Roberts practice estate planning and family law, respectively, at the Portland law firm of Gevurtz, Menashe, Larson & Howe, P. C.