FMLA and Same-Sex or Common-Law Marriages for Federal Employees

Same Sex MarriageOne frequently asked question which I encounter is in regards to same-sex marriages and common-law marriage in regards to federal employees. Questions such as these are very complex in nature since there are multiple variances in regards to each state.

The federal government must now recognize valid same-sex marriages. The operative word here is valid.

The US Supreme Court made the decision on June 26, 2013 that cleared the way for same-sex marriage couples to receive federal benefits. This is when the Supreme Court struck down the section of the federal Defense of Marriage Act (DOMA) that limited directed mission of marriages to those between a man and a woman. So yes, it is safe to say that same-sex marriages are recognized by the DOD.

However, and unfortunately, it is not that simple. The word “valid” applies to marriages performed only in the states that recognize same-sex marriages. Which is great, provided you live in one of the states. There are a few federal agencies such as the US Citizenship and Immigration Services, the US Office of Personnel and Management, along with the IRS, that recognize same-sex marriages no matter what state they may reside in. This coincides with an August 2013 ruling by the Treasury Department. On the other hand, they do not recognize same-sex couples in a domestic partnership or civil unions. The Social Security Administration only recognizes marriages that are valid in the state in which the couple resides. This rule also applies to Medicaid, Social Security insurance, Medicare, bankruptcy filings, and benefits under the Family Medical Leave Act.

In regards to common-law marriages, there are only 10 states that legally recognize such marriages. They are Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas and Utah. The difference between a common-law marriage and what is considered a “valid” marriage is simply the fact that it has not been solemnized in the ordinary ceremonial way. It is important to mention at this point that common-law marriages are not recognized within the military, although some benefits may be recognized based on the laws of the state in which a common-law spouse may work. Again, it is not recognized within the active military. Even branches of the government that do recognize same-sex marriages do not recognize common-law marriages.

There are four requirements for a valid common-law marriage in the areas where they are recognized:

  • The couple must live together
  • The couple must present itself to others as a married couple
  • They must live together for a significant amount of time
  • And they must intend to be married

There are so many variances involved in either same-sex marriages or common-law marriages that it is often difficult to know exactly where you stand with regards to benefits for your spouse if you are employed by the federal government (or wish to be). A classic example of how quickly things can change is in regards to the state of Pennsylvania. At one time, and for many years, this state recognized common-law marriages. Yet approximately a year ago this acceptance was overturned. If you are someone who currently works for the federal government or wishes to, and have a mate, you need to investigate the status and that of your spouse in regards to government employee benefits.

Any opinions expressed in this article are the sole opinion of the author and may not necessarily reflect the beliefs of US Patriot Tactical, its owners and employees.

Teresa Agostino

Originally from Canada, Terri moved to the US at 16 and joined the Army Reserves at 17. She went active Army in 1991, and spent almost 2 years in Iraq as a program analyst for the Army Corps of Engineers. She currently works for the VA as an Accounts Management Supervisor. Terri has her MBA in HR management.
Teresa Agostino

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