Now that same-sex marriage is in full-swing in New Mexico, my law office has been receiving lots of incoming phone calls about certain issues. I’d like to talk with you about a few of them here. The first question I get is: Do I have to legally adopt my child even though we’re married? Well, if you move to a state that doesn’t recognize your marriage, you’re going to have to adopt your child. They’re not going to recognize that you’re the legal parent of your child. The biological parent if there is one, will be considered a parent, but the non-biological parent or parents will not.
Let me tell you something, the last thing you want is to be on vacation at Disney World in Florida, and have something happen to your child. As a non-biological parent, that hospital won’t recognize your parental rights and you’ll likely not be able to be at your child’s bedside. Whether you’re going on vacation, or you’re going to be moving you do need to adopt your child. The second question I get a lot is: Do we now have to file joint tax returns, both for the state of New Mexico and federally? Again, this depends on where you live as most of these questions do in these uncertain times.
You’ll always have to file a federal tax return jointly, no matter where you live. If you live in New Mexico, or another state that recognizes same-sex marriage, you’ll be able to file a joint tax return in that state as well. However, if you receive money or income from a non-recognition state such as Texas or Arizona, or you’re moving or living in a non-recognition state, you’ll most likely have to file a separate state return, but you’ll still always have to file a joint federal return. The next question I hear a lot is: We came to get married in New Mexico, but things didn’t really work out, but we actually live in Texas and want to get a divorce.
You’re really going to need to have to contact a lawyer about this question because it just depends on what state, and sometimes, even in that state what county you live in. Texas is an excellent example. If you’re going to get a divorce in New Mexico, you have to live here six months before you can get a divorce. If you’re not living in New Mexico, and you live in another state, you have to comply with that state’s divorce laws. Texas for instance, doesn’t recognize same-sex divorces so you can’t get divorced in Texas.
There are some ways that you can get around that, but that’s why it’s always important to speak with a lawyer who is experienced with LGBT law, and involved in the LGBT community who knows nationally what’s going on in these issues. For more information about LGBT divorces, read Part 2 of our blog coming next week, or contact us directly at 505-924-1000.