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Same-sex marriage: federal standards for benefits after DOMA (part 2)

In my previous blog post, I discussed the same-sex marriage federal benefits conundrum as receipt of federal benefits fall under two different standards: "place of residence" and "place of celebration." As further illustration, let us examine "place of residence" and "place of celebration" as it applies to the US military.

The Department of Defense (for active-duty military) looks to where the parties married to determine federal benefits eligibility. Known as the "place of celebration" rule, if a service member married in a state that allows same-sex matrimony, the union is valid regardless of what state the service member resides.

For example, if a gay military service member married in Washington the union is valid, regardless if the couple relocates to Virginia. And the service member is entitled to all the spousal benefits that flow from his Washington marriage, such as, dependent-rate housing allowance. But the same-sex military couple could not divorce in Virginia. They could only divorce if they lived in a state that recognized gay marriages. 

In determining veteran benefits, the Department of Veteran Affairs (VA) adheres to the "place of residence" standard. The VA looks to where the parties reside at the time of the same-sex civil union or where they reside when the benefits accrue. Below are three examples of the "place of residence" standard and when spousal veteran's benefits take effect

Example 1: Same-sex couple lives in Virginia, marries in Washington, and returns to their residence in Virginia. Is the spouse eligible for veteran's benefits? No. The parties lived in Virginia, they only came to Washington to marry, they returned back home to Virginia, and Virginia does not recognize same-sex nuptials. The couple also could not divorce in Virginia. 

Example 2: The same-sex military couple leaves Virginia to reside in Washington. Is the spouse eligible for veteran's benefits? Yes. The spouse can receive veteran's spousal benefits because same-sex marriage is legal in Washington and they reside in Washington. They can also divorce in Washington and the non-service member spouse is entitled to receive certain military benefits, such as, retirement.

Example 3: The couple lived and married in Washington, then subsequently moved to Virginia. Is the spouse eligible for veteran's benefits? Yes. When the parties married they were living in Washington, and their union is valid under Washington state law. But they could not divorce in Virginia as Virginia state law does not recognize same-sex marriages.

This blog post ends the two part series on the complexities that the two federal standards ("place of residence" and "place of celebration") pose for the same-sex couple.

Source: www.labdalegal.org, "After DOMA: Veteran's Spousal Benefits" LGBT Organizations Fact Sheets Series: After DOMA What It Means For You, Undated

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