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Frequently Asked Questions about Same-Sex Marriage and Divorce Rights in Pennsylvania

Since May 20, 2014, when Judge John Jones of the Middle District of Pennsylvania struck down the PA DOMA as unconstitutional in Whitewood vs. Wolf, the Family Law community has been waiting to see the effects of the decision. Many are resoundingly positive, but others create new issues that the state has never dealt with before. Family Law attorneys are left to find ways to best interpret the case law in the absence of legislation as well as assist their clients.

Many same-sex couples are contemplating marriage after years of living together thinking that the idea would never become a reality. Lots of partners want to make the most informed decisions they can. Just like opposite sex couples they want to know the tax implications of marriage, the pros and cons of a prenuptial agreement, how to legally change their last name, etc. Here are some frequently asked questions that can help:

1. If I was married in another state prior to May 20, 2014, will my marriage be recognized in Pennsylvania?

Yes. If you married in another state, your marriage will now be recognized in Pennsylvania and you will have all the rights and obligations of opposite sex married couples under Pennsylvania law. There is no need to get married again here in Pennsylvania.

2. If I entered into a civil union or domestic partnership in another state prior to May 20, 2014, will my civil union or domestic partnership be recognized in Pennsylvania?

Probably not. The Pennsylvania case that made same-sex equality into law makes no reference to civil unions or domestic partnerships. So, it is unclear what, if any, recognition will be given to those statuses. If you and your partner want the rights of a married couple, you should legally wed. Additionally, the federal government does not recognize civil unions or domestic partnerships as the equivalent of marriage for federal tax purposes. You would still need to get married in order to file your taxes as "married filing jointly" or "married filing separately."

3. Can I obtain a divorce from a same-sex spouse?

Yes. Divorcing same-sex couples now have access to the Pennsylvania courts just as opposite-sex couples, with all the same rights and obligations as married couples under the Pennsylvania law. Before May 20, 2014 couples who lived in our state were essentially "wed-locked" as they did not have access to the Pennsylvania courts. Most often, parties wishing to divorce had to go to another state where the marriage was recognized, establish residency, then proceed with the divorce process.

4. What date should I list as the date of my marriage on documents and forms?

The date you were actually married, not the date Pennsylvania recognized the marriage.

5. If I get married, can I change my last name to be the same as my spouse through the marriage license?

Yes. Just as an opposite-sex couple can complete their marriage license to reflect your desired last name, so now can same-sex couples.

6. How does marriage affect my ability to ad my spouse's name to the deed of my house?

You can now add your new spouse's name to the deed of your house without incurring real estate transfer tax or needing to refinance your mortgage.

7. If I have a Cohabitation Agreement with my partner and we then marry, is our agreement still valid?

No. Usually, a cohabitation agreement is voided by a subsequent marriage. If you want any of the terms from your prior agreement to carry over, it may be a smart idea to draft and sign a prenuptial agreement.

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