by Jerry Funaro, CRP, GMS
Vice President, Global Marketing, TRC Global Mobility, Inc.

The Confused (and Confusing) State of U.S. Same-Sex Marriage Laws

National and state marriage laws can present significant obstacles in relocating same-sex couples. The U.S. Defense of Marriage Act (DOMA) defines marriage as the legal union of one man and one woman, and the U.S. federal government does not recognize same-sex marriages performed in any jurisdiction.

DOMA also asserts that no state is required to recognize as a marriage a same-sex relationship that is considered a marriage in a different state. Today, 41 states have passed constitutional amendments or legislation limiting marriage to one man and one woman. In practical terms, if a transferee is legally married to a same-sex partner at the departure location, that marriage will cease to be recognized in most destination states.

To make things even more complicated, states with same-sex marriage recognize same-sex marriages from other states. States with same-sex civil unions usually recognize civil unions from other states, but not marriages. Some treat out-of-state same-sex marriages as civil unions. A handful of states that offer neither same-sex marriage nor civil unions have nonetheless recognized those statuses from other states, sometimes as domestic partnerships.

Things to Consider in LGBT Relocation

In short, a prospective transferee who has entered into a same-sex marriage or civil union in the departure location will certainly need to consider his or her legal standing in the new state. Aside from the emotional impact of becoming essentially divorced, a move to a non-marriage state could entail the loss of significant rights and benefits in terms of taxes, inheritance, medical decisions, adoption and more. Your prospective transferee will want to conduct thorough due diligence and possibly seek independent legal advice as part of the pre-decision process. A lawyer experienced in family law can craft wills and contracts to replicate some of the rights and privileges that come from a marriage or civil union.

International Assignment Issues

Prospective global assignees (including U.S.-inbound candidates) face even more complex issues. A handful of countries and regions of countries allow same-sex marriage or civil unions and may recognize a same-sex marriage or civil union from another jurisdiction. Many, however, do not. This situation can force one partner to remain home while the other takes an assignment abroad, cause an employee to reject a job offer, or result in loss of partner benefits. The intricacies of global immigration and spousal issues are described by Patricia Jimenez-Marcos in the Mobility magazine article linked below.

As for U.S. inbound assignees, Jiminez-Marcos adds, “The United States will consider the facts and circumstances of unmarried opposite-sex couples on an individual basis, but does not generally recognize common law marriage as a qualifying event for a dependent visa.” Same-sex partners or spouses of U.S.-inbound assignees are not recognized by the U.S. government for immigration purposes. Companies who wish to send an employee who is part of a same-sex relationship abroad need to raise this issue with their global immigration partner as part of the pre-assignment due diligence process.

Safety and Security Issues

For the most part, it’s better not to assume that a destination is suitable for a same-sex couple. Some locations are famously open and tolerant, while some less-known or remote places can be surprisingly accepting on a one-on-one basis. In other places, living as a same-sex couple (or even as a gay person) is dangerous. In a few countries, homosexuality is punishable by death; in many more, there is a significant risk of harassment or even imprisonment . Some employees might be willing to take a career-building job assignment knowing they will have to live discreetly and cautiously. In this case, the company must consider its own risk profile and determine if placing the employee in such an environment is best for the company and the individual.

The Importance of Preparation

Family issues aside, a company is almost always best-served by offering the strongest candidate the relocation, wherever it is located. If the candidate is part of a same-sex couple, he or she will have to weigh potential legal and security issues alongside more traditional considerations. While legal and safety issues are beyond the employer’s control, equitable policy, sensitive counseling and expert destination services will make the relocation process for same-sex partners as smooth as possible and allow the transferee to focus on the new assignment.

Today’s legal situation is highly fluid, with a number of high-profile cases related to same-sex marriage working their way through the courts. As with any relocation or global assignment, research and preparation are critical, for both the company and the relocating employee. Proper due diligence will increase the chances for a successful transition and reduce the risk of failed assignments — and relationships.

Links to additional information

More on TRC’s corporate relocation services

Mobility magazine article on immigration concerns for partners of international assignees

LGBT Rights by Country and Territory

TRC Blog

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