The past two weeks have been filled with historic ‘firsts’ here in New Mexico. A state judge has declared that denying the freedom to marry to committed, loving same-sex couples is unconstitutional, and issued a n order to Santa Fe and Bernalillo Counties to start issuing marriage licenses to same-sex couples. As of this writing, six counties in New Mexico are issuing marriage licenses to same-sex couples. Despite all the good news, some uncertainty remains. Until we have a ruling from the Supreme Court, some questions will remain. To help respond to some of these frequently asked questions the ACLU of New Mexico, the national ACLU, and the National Center for Lesbian Rights have prepared a FAQ for same-sex couples:
Q: Can same-sex couples marry in New Mexico now?
A: Yes, in some counties. In others, it’s not yet clear and likely will not be until we get the final word from the New Mexico courts. Several New Mexico counties (Bernalillo, Santa Fe, Dona Ana, Taos, San Miguel and Valencia, to date) are issuing marriage licenses because they believe New Mexico law allows same-sex couples to marry, and because a court has ordered two counties to issue licenses. The Attorney General has agreed that New Mexico marriage law would be unconstitutional if it excluded same-sex couples from marriage. But that court ruling is not yet final, and there may be an appeal. We are working to secure a court ruling that will answer this question definitively for all New Mexicans.
Q: I was married in New York last year, is my marriage now valid in New Mexico?
A: We strongly believe that the law requires recognition, but married same-sex couples will not have a definitive answer until there is a final court ruling on this issue, which we are working to secure as quickly as possible. The Attorney General issued an opinion in January of 2011 concluding that New Mexico courts would recognize and respect the marriages of same-sex couples validly entered into in another state or country. With many New Mexico counties allowing same-sex couples to marry now, it makes sense that those counties would respect out-of-state marriages for same-sex couples just as they do for straight couples—and we strongly believe the law requires equal treatment of all legally married couples. We are working to get a final answer from the courts that will apply to everyone in New Mexico.
Q: I was married in Sandoval County in 2004 and we have since split up. Do I need to get a divorce?
A: Yes, you should obtain a divorce. As explained above, many counties are allowing same-sex couples to marry, and those marriages should be valid for all purposes under New Mexico law. While the court case is not over yet, and therefore we don’t yet have a final answer, the safest course by far is to obtain a divorce. Failing to do so could end up subjecting you to significant negative legal consequences, such as being responsible for your spouse’s debts or having your spouse be entitled to your estate if you pass away. We are working to get a final answer from the courts that will apply to everyone in New Mexico.
Q: I was married in Canada in 2008, should I get married again here in Bernalillo County this week to make sure New Mexico will recognize my marriage?
A: There is no legal reason to get re-married if you have previously married in a place that permits same-sex couples to marry. If New Mexico allows you to get married here, it will recognize your marriage from another state or country as well. We do not have a final answer from the New Mexico courts about whether the state recognizes and respects the marriages that same-sex couples have entered either in other places or in New Mexico, but we are working to get a final answer from the courts that will apply to everyone in New Mexico.
Q: I was married this week here in Santa Fe County, should I get married in Boston next month when we are there visiting, just to make sure we have a “valid” marriage?
A: At this point, we know for sure that same-sex couples can legally marry in 13 states plus the District of Columbia, as well as 5 Native American tribes. There is no question that couples who marry in those places have entered in to a valid marriage. Currently, several counties in NM are allowing same-sex couples to get married, but the court case that prompted some of those counties to issue licenses is not over yet, and there could be an appeal. So we don’t have a final answer yet on whether those marriages are going to be respected by the state for all purposes. We are working to get a final answer from the courts that will apply to everyone in New Mexico.
Q: So, my marriage last week in Las Cruces is valid, and the cases are over, right?
A: We believe that New Mexico law allows same-sex couples to marry; many county clerks and the New Mexico Attorney General agree, and a district court judge has ruled that New Mexico law requires the government to permit same-sex couples to marry. But that case is not over yet, and there may be an appeal, so we don’t have a final answer on whether the state will recognize and respect those marriages for all purposes. We are working to get a final answer from the courts that will apply to everyone in New Mexico.
Q: Should we get married now, before a restraining order is put in place, or wait for the litigation to be completed and a decision from the Supreme Court?
A: That’s a decision that only you can make. We believe that New Mexico law allows same-sex couples to marry; many county clerks and the New Mexico Attorney General agree, and a district court has ruled that New Mexico law requires the government to permit same-sex couples to marry. But that case is not over yet, and there may be an appeal, so we don’t have a final answer on whether the state will recognize and respect those marriages for all purposes. We are working to get a final answer from the courts that will apply to everyone in New Mexico.
Q: If my new husband has a lot of debts from before we were married, do I have to pay his debts, now that we are married?
A: Getting married results in taking on major responsibilities for your spouse—including significant responsibilities related to community property and debt, as well as many other marital obligations. In general, property and debts earned or acquired before marriage are the sole and separate obligation or asset of the person who created the debt or earned the asset. Earnings and debts incurred during the marriage belong to both of you – the marital community. Some things, like inheritance or gifts, can remain your sole and separate property and not become community property if you do not mix those separate assets and debts together with your community assets and debts during the marriage.
For all same sex couples contemplating marriage, there are real rights and responsibilities that flow from marriage, and you should investigate those matters to your satisfaction before you get married. Marriage is the right choice for many couples, but not all.