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A Brief Primer on
Same-Sex Marriage in Connecticut

While Connecticut has become — surprisingly, given its conservative roots — hospitable to same-sex marriages, legal difficulties arise because of the refusal of both the federal government and numerous other states to recognize same-sex marriages contracted in Connecticut. This article discusses some of the issues that may arise as a result of such non-recognition and possible strategies for dealing with them.

Current Law of Same-Sex Marriage in Connecticut.

Since 2008, Connecticut has been one of the few states to allow1 same-sex marriage; there are now five other states that allow couples to contract a same-sex marriage: New Hampshire, District of Columbia, Iowa, Massachusetts, Vermont.2 Effective October 1, 2010, all preexisting Connecticut civil unions will be converted to marriages, and the family laws of Connecticut will become effectively completely gender- and orientation- neutral. Until September 30, 2010, same-sex couples may elect either a civil union or a marriage.

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Getting Married.

The process for marrying in Connecticut is simple, and many of the border towns with New York have become havens for same-sex marriage tourism — seeking to make it as easy and fun as possible for the parties and their guests, while enriching the local merchants. The parties must simply present themselves to the town clerk for a license (which is frequently issued on the spot for $30) and then have the marriage solemnized within 65 days. There are no waiting periods, blood tests or other meaningful obstacles in most cases. Neither party may presently be married or in a civil union with a different person than the co-applicant, and both must be over the age of 18 and may not be close relatives. The marriage may be solemnized by a justice of the peace, judge, or clergyman from any state. Officiants are generally easy to find; many justices of the peace actively seek out this business. The parties do not have to be Connecticut residents. Parties who have entered into a civil union or a comprehensive domestic partnership in another state may marry the same partner in Connecticut.

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Federal Non-Recognition of Same-Sex Marriages.

The federal Defense of Marriage Act (“DOMA”)3 contains two principal provisions of interest to same-sex couples contemplating marriage in Connecticut. First, DOMA invites state governments to refuse to recognize same-sex marriages contracted under the laws of a sister state;4 I discuss the consequences of sister-state non-recognition below. Second, DOMA declares that, for federal purposes, only persons of different sexes may be considered to be married. This means that, with respect to the approximately 1,100 federal laws that take marital status into account, same-sex couples must be considered to be unmarried. Thus, merely as a few examples, same-sex couples may not file joint tax returns, may not obtain spousal Social Security survivor benefits, may not obtain the favorable tax benefits associated with leaving estate property to a surviving spouse, and may not use their marriage in order to adjust the immigration status of an immigrant spouse. The divorce-taxation issues alone are far-reaching: again, merely by way of example, a divorcing same-sex couple may be denied the opportunity to make tax-free property transfers to one another, an alimony payor may be denied a tax deduction for his or her payments to a former spouse, and the parties may be precluded from making tax-deferred transfers of retirement account interests to one another. Same-sex couples who are considering marriage in Connecticut or anywhere else should be aware of these, among other, limitations. Judicial challenges to DOMA are presently in progress, and legislation has been introduced to expand the rights of same-sex couples. Until relief from DOMA is received, DOMA remains the supreme law of the land.

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Sister-state Recognition Issues.

Same-sex couples tend to be highly mobile, and there is a good chance that couples who marry in Connecticut (or in any other state that permits same-sex marriages) will either immediately leave the state or will not reside forever in the same state in which they were married. Historically, each state has determined for itself whether to accord validity to sister-state or foreign marriages. While most states follow the rule that a marriage valid in the place where it was contracted will be deemed to be valid for the laws of the new state of residence, there are exceptions; and same-sex marriages are now the chief exception in the United States. Presently, all of the states that permit same-sex marriage recognize such marriages lawfully contracted in other states; but of the states that do not permit parties of the same sex to contract a marriage, only New York, Rhode Island and Maryland recognize sister-state same-sex marriages. (It seems likely that sister-state same-sex marriages will also be recognized in California, although the status of such marriages in California is presently unclear.) Thus, a same-sex couple who marry lawfully in Connecticut and move to Florida will be deemed unmarried under the laws of their new state of residence. Just as the federal DOMA determines many economic and immigration benefits, state-law issues may be extremely important in determining such equally important matters as inheritance rights, health insurance, medical decisions and divorce. For example, consider two women who marry in Connecticut and have a child through artificial insemination of one of the parties; both parties will be deemed to be the parents of the child under Connecticut law, but the non-biological parent will not be deemed to be related to the child in any way under the laws of most of other states. That means, for example, that she will not be entitled to legal custody of, or to inherit by default from, the child. It also means that a bequest in a will to her “children” might fail. Careful planning is required to avoid these results.5

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The right to obtain a divorce in any state depends on two factors: first, the parties must have a legal relationship that is recognized by that state; and second, they must meet the state’s residency requirements. A same-sex couple who marry in Connecticut will be able to obtain a divorce in Connecticut as long as one of the parties still resides in Connecticut at the time of the divorce action. Parties who make a transitory visit to Connecticut for the purposes of becoming married will not thereby confer divorce jurisdiction on the Connecticut courts. Likewise, if both parties initially reside in Connecticut and move to a state that does not recognize same-sex marriages, they will not be able to obtain a divorce in the new state because they will be deemed to be unmarried; nor, very importantly, will they be able to obtain a divorce in Connecticut because they will not meet Connecticut’s residency requirements. While obtaining same-sex divorce in Connecticut is “conventional” in all respects — including the jurisdictional requirements, grounds, division of property, child custody, alimony, etc. — parties who are considering contracting a same-sex marriage in Connecticut should prepare for the possibility that they may relocate outside the state during their marriage and be left with no practical means of ending it if the need arises.

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Other issues

Applying for an adjustment of immigration status based on a same-sex marriage may have potentially disastrous consequences, including deportation of the immigrant spouse. Parties who are in the military should be aware that contracting a same-sex marriage is a violation of the “don’t ask, don’t tell” law and grounds for discharge. Parties should also be extremely careful with possible consequences of their marriage on attempts to adopt a child from a country that does not recognize their marriage. Although same-sex married couples will be able to file a joint Connecticut income tax return, as noted above, they are not able to file a joint federal return. The status of certain parental rights resulting from the application of assisted reproduction technologies remains in flux in Connecticut and else-where.

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Some Suggested Premarital Steps

To an even greater extent than in traditional marriages, same-sex couples should consider entering into a prenuptial agreement. Connecticut’s Premarital Agreement Act6 was enacted to encourage such agreements and renders them enforceable in nearly all cases where the agreements have been fairly negotiated.7 Although the negotiation and execution of such an agreement seems an extremely unromantic act on the eve of an impending wedding, same-sex couples will generally benefit from a prenuptial agreement, and it should be possible to contemplate — and in many cases mitigate — most of the adverse effects of DOMA through proper drafting. The agreement should cover: (a) assuring that any child of the parties is adopted by the non-biological parent; (b) in the event of divorce, future submission of the parties (by relocation, if necessary) to the jurisdiction of a court in Connecticut in the event that they have relocated to a non-recognition state; (c) possible submission of non-justiciable emergency or temporary disputes to arbitration; and (d) provision for resolution of alimony and property issues (also possibly by arbitration) in the event that the relationship ends.

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Concluding Note

The laws governing same-sex marriages in Connecticut — including, possibly more importantly, the interplay with federal and sister-state laws — are complex and in flux. Couples considering marriage in Connecticut should consult with a family-law attorney with specific experience in these matters.

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1Connecticut has permitted same-sex civil unions since 2005. In 2008, the Connecticut Supreme Court found the civil-union law to violate the Connecticut state constitution’s guarantees of protection under and required mar-riage to be equally available to same-sex couples. Kerrigan v. Comm’r of Public Health, 289 Conn. 135, 957 A.2d 407 (2008).

2In California, same-sex marriages were lawful from June 16, 2008 to November 4, 2008; a ballot initiative called Proposition 8 terminated the practice. California permits same-sex civil unions with the benefits of marriage.

3110 Stat. 2419 (1996), principally codified at 1 U.S.C. § 7.

428 U.S.C. § 1738C. This provision is of questionable constitutionality, since it directly conflicts with the Full Faith and Credit Clause, U.S. Const., art. IV, § 1; moreover, the states seem perfectly capable of deciding which extraterritorial marriages they will respect under their own internal laws.

5Until the law in this area is better resolved, couples in this situation who reside in Connecitcut should seriously consider applying to the Connecticut Probate Court for a co-parent adoption in order to establish their equal and joint parental rights in all states.

6CONN. GEN. STAT. § 46b-36b

7Friezo v. Friezo, 281 Conn. 166, 914 A.2d 533 (2007).