Becoming Legally Available BEFORE Your Wedding Day

Scales of JusticeCongratulations!

If you are reading this, you or someone you know is seriously considering taking the plunge and is probably very excited about the opportunity to do it. At long last, same-sex marriage is legally significant (though it’s been emotionally significant for a good long time).

The excitement of the marriage movement can sweep us off our feet, even despite the fact that marriage is a life-long commitment – with potential legal consequences. And, we, at McCabe Russell, P.A., know all about the rush of excitement attached to marriage because we’re partners in law and in life and we’re married (to each other).

Our job as lawyers is to start at the very beginning, so before you walk down the aisle, we need you to answer this very simple question: Have you ever been married before?

We have met – more than once – with soon-to-be-betrothed couples in our office who thought they were going to get married at the end of the week, but who, by the end of our initial consultation, were instead figuring out how to undo an earlier marriage that has been emotionally irrelevant for years, but has become legally relevant in the U.S. in the past few years.

A hypothetical situation will make this easier for all of us to grasp:

John and Avery got married in Ontario, Canada in 2004. For them, it was largely an emotional and political statement because they were U.S. citizens living in D.C. and, at the time, there were no states recognizing same-sex marriages. So that marriage was not considered valid back home. In 2006, they broke up. And, in 2009, John found love again with Zach. John and Zach have been living together in D.C. and plan to get married in November 2010.

But John and Zach can’t get married . . . yet. John and Avery are married and need to get divorced. Luckily for John, he hasn’t actually gotten married yet. Luckily for everyone, John is living in D.C. and can get a divorce there. And the sooner he acts, the better.

Bottom line: It’s easy to get swept up in the momentum of the marriage movement, we know. We’re glad we’re married. We often even recommend marriage. And while we really like what we do – being family law lawyers serving the LGBTQ community – we really don’t want to represent you in your annulment on the grounds of, gulp, bigamy (as could have been the case had John married Zach without getting divorced from Avery).

For one thing, a legal argument like this would be embarrassing for you; for another, it’s not a good foundation for the start of what should be a life-long commitment.

Before you take the plunge and, better, before you pop the question, you and the one you love need to have a preliminary heart-to-heart on your previous relationships:

  • Have either of you exchanged vows in a marriage ceremony before?

  • Have either of you exchanged vows in a civil union before?
  • Are either of you in a legally recognized domestic partnership in another state?

If the answer to any of those questions is, “Yes,” you need to make sure that those legal commitments have been undone. And if they haven’t been, you need to take the legal steps necessary to undo these commitments, even if it means pulling up the reins on the nuptials. We know you want to be married and we don’t want to rain on your big day, but if you want it to be legal (and we do), you need to make sure you’re legally available first.

We share your excitement over the possibilities, we do. But we feel obliged to stress that the legal recognition of same-sex marriage and partnerships in some states and not in others, brings a whole bevy of traps of which you need to be wary.

We welcome your questions and encourage you to ask them before your big day.

Legally Yours,

Heather & Emily




Photo Credit: © Tmcnem | Dreamstime.com

Heather McCabe and Emily Russell are family law practitioners who regularly serve the LGBT community in all kinds of legal affairs – from adoptions to dissolutions/divorces. McCabe has taught family law and legal writing and has been on the faculty at Georgetown Law, American University, and University of Baltimore. Russell worked as a lobbyist before coming to the law. Whether through document drafting, mediation, collaborative law, or litigation, McCabe and Russell are committed to the creation and security of the unique families they serve.