Overcoming the challenges of gay marriage in a state that does not recognize it

When a same-sex couple moves to a state that does not recognize their marriage, they should be aware of – and prepared for – the implications.

Marital benefits

When a same-sex couple is married in a state that recognizes the lawful status of their wedding vows, they receive the same protection and benefits as their heterosexual counterparts. This includes being able to file joint tax returns, splitting pensions and income, and benefiting from spousal inheritance rights. Being legally recognized as married provides access to a number of other spousal benefits and protections, although these vary by state.

If a same-sex married couple moves to a state where their marriage is not recognized, the couple may not be able to benefit from the legal protections and benefits that they are used to. This raises a host of concerns for that couple. If you plan to move out of state, it is a good idea to write a will that assigns power of attorney to your partner and clearly denotes them as your chosen beneficiary for inheritance purposes. 

You should enlist the services of an attorney practicing family law in Albuquerque to ensure that the documentation that is written provides sufficient protection for you and your family before you move to another state. 

Parental rights

When same-sex parents live in a state that recognizes the lawful status of their marriage, their parental rights are protected in the same way that a straight couples’ rights would be. However, if that couple were to move to a state that does not recognize same sex marriage in the same way, the non-biological parent may encounter challenges in asserting their parental rights.

In this case, the safest way of protecting these rights is to enact a second parent adoption prior to moving out of state. This confirmatory process ensures that both parents have legally recognized parental rights, wherever they are in the country.

Financial considerations

In order for a gay married couple to access the financial benefits of their marriage while living in a state that does not recognize the lawful status of their marriage, they should prepare for the move with all financial eventualities in mind. They should consider enacting legal documents to protect their status, such as assigning healthcare proxies and domestic partnership agreements that will provide a greater level of legal recognition once they have moved to a new state.

There is no guarantee that these documents will entitle them to file joint tax returns or access the benefits, deductions and credits that are available to straight married couples, but they can improve their chances. Moreover, in the event that the law of the state changes while they are living there, they may be able to apply for retrospective action should they maintain a sufficient evidence trail.

Other considerations

It is important to remember that moving to a state that does not recognize same-sex marriage can have repercussions in terms of a poor social climate and a higher risk of discrimination, which could affect the couple’s ability to gain employment and housing.

It is therefore essential that the couple tests the culture of the state that they wish to move to and ensure that they will be able to enjoy a life that is free from hate and prejudice.

Divorcing in a state that does not recognize same-sex marriage

Should a gay couple move to a state that does not recognize the legal status of their marriage and then decide to divorce, the legal process for dissolving the union can become considerably more complicated.

They will first need to meet the residency requirements of the state in which they wish to divorce. If the couple can’t meet this requirement, they may be forced to file in their previous home state for divorce.

It is possible, maybe likely, that the court in a state that does not recognize same-sex marriage will divide property acquired to the partner who is the titled owner of that property, with only assets, debts and finances acquired jointly being equally split between the separating couple. A prenuptial or post-nuptial agreement assigning ownership of assets acquired during marriage may help in assuring an equal division.

Custody and visitation of children may be more complicated to resolve, particularly if the biological parent intends to move back to their previous home while the second parent remains in the current home. Second parent adoption may eliminate this risk as the second parent will be lawfully recorded as having full parental rights.

In conclusion

Moving to another state offers more challenges than you might initially realize if you are in a same-sex marriage. To ensure that you are aware of your legal rights, the Law Office of Dorene A. Kuffer can help you explore the avenues that are open to you for legal protection and advocacy.


[1] https://www.glad.org/wp-content/uploads/2017/01/legal-planning-couples.pdf
[2] https://www.childwelfare.gov/topics/adoption/adoptive/family-type/second-parent/
[3] https://www.divorcenet.com/states/nationwide/what_is_a_settlement_agreement