Tis series of fact sheets produced together by:
American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & DefendersHuman Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.
MILITARY SPOUSAL BENEFITS
Service members receive only approximately 30% o their total compensation in the ormo base pay. Te remaining 70% o their compensation package comes in the orm o allowances, in-kind benets, and—in the case o retirees—deerred compensation. Forservice members who are married (or who have another qualied dependent), many o these allowances and benets are increased, to account or the reality that the servicemember is providing or a amily, instead o an individual. Tese increases are generous,and reect the unique strains and challenges placed on a amily with a member serving inthe military.
Who is a military spouse?
For the active military, reserves, and National Guards, by statute a “spouse” is “a husbandor wie as the case may be.” Ten-Secretary o Deense Panetta said in a memo onFebruary 11, 2013, that:In the event that the Deense o Marriage Act is no longer applicable to the Departmento Deense, it will be the policy o the Department to construe the words “spouse” and“marriage” without regard to sexual orientation, and married couples, irrespective o sexual orientation, and their dependents, will be granted ull military benets. www.deense.gov/news/Same-SexBenetsMemo.pd With the Supreme Court striking down DOMA as unconstitutional, it no longer appliesto the Department o Deense (DOD) and we can expect the DOD to issue a ormalstatement that it will construe the statute denition o spouse to be inclusive, as laid out inSecretary Panetta’s statement.
Which marriages does the military consider valid?
Generally, the military will consider a marriage valid i it was valid in the state wherethe marriage took place. A state-issued marriage certicate is normally all the evidencenecessary to demonstrate that the marriage was considered valid by the state.Marriages entered into in oreign countries to oreign nationals generally must be approvedby the military service beorehand. I such a marriage is not approved beorehand, theservice member must obtain a “recognition o marriage” rom the military service. Ingeneral, no benets will result rom marriage entered into in a oreign country to a oreignnational unless it was pre-approved by the service or ratied aterwards. While a marriage may be valid according to state law, the military does not providebenets—or will seek restitution or benets already paid—or “sham” marriages enteredinto solely or the purposes o obtaining benets. Te military has aggressively prosecutedsuch cases in several instances.
Keep in Mind:
Te Supreme Court’s ruling in
applies only to the ederalgovernment. It does not change discriminatory state laws excluding same-sex couples rom state-conerred marriage rights.
Te ruling striking down DOMA will not be eective until 25 daysrom the decision. Even when eective, ederal agencies—largebureaucracies—may need and take some time to change orms,implement procedures, train personnel, and efciently incorporatesame-sex couples into the spousal-based system.
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses willreceive ederal marital-based protections nationwide. For ederalprograms that assess marital status based on the law o a state thatdoes not respect marriages o same-sex couples, those state laws will likely pose obstacles or legally married couples and surviving spouses in accessing ederal protections and responsibilities.
Securing air access to ederal protections that come with marriageor all same-sex couples in the nation will take some time and work.In some situations, it may require Congressional action or ormalrule-making by agencies.
Beore making a decision, it is essential that you consult an attorney or individualized legal advice. Tis is particularly important orpeople who are on certain public benets, as getting married may jeopardize your eligibility without providing you the ull measureo protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unairly unableto obtain a divorce, which can lead to serious negative legal andnancial consequences. People must make careul decisions whenand where to marry, even as we work together to end this injustice.
We are committed to winning universal access to ederal maritalprotections or married same-sex couples through ongoing publicpolicy advocacy, and, where necessary, strategic litigation. Contactour organizations i you have questions, or updates and to learnmore about what you can do to achieve ull equality or those whoare LGB.Tis Guidance is intended to provide general inormation regarding major areas o ederal marriage-based rights and protections based onhow the various ederal agencies have administered ederal benets.
It should not be construed as legal advice or a legal opinion on any specifc acts or circumstances, and does not create an attorney-client relationship
. Past practice is no guarantee o uture developments. While laws and legal procedure are subject to requent change anddiering interpretations in the ordinary course, this is even more truenow as the ederal government dismantles DOMA and extends ederalprotections to same-sex couples. None o the organizations publishing this inormation can ensure the inormation is current or be responsibleor any use to which it is put.No tax advice is intended, and nothing therein should be used, andcannot be used, or the purpose o avoiding penalties under the InternalRevenue Code.Contact a qualied attorney in your state or legal advice about yourparticular situation.
The Supreme Court victory in
United States v. Windsor
striking down the discriminatory ederal Deense o Marriage Act (DOMA) afrms that allloving and committed couples who are married deserve equal legal respect and treatment rom the ederal government. The demise o DOMAmarks a turning point in how the United States government treats the relationships o married same-sex couples or ederal programs that are linkedto being married. At the same time, a turning point is part o a longer journey, not the end o the road. There is much work ahead beore same-sexcouples living across the nation can enjoy all the same protections as their dierent-sex counterparts.