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Same-Sex Marriage FAQs
 

For most current guidance, see Implementation Guidance Memo for SB2 (June 12, 2015)

These FAQs are about the federal ruling on same-sex marriage.
Note: The content on this page will grow as questions and answers develop. Return to Resources page.

MAGISTRATE RECUSAL FROM PERFORMING MARRIAGES

These FAQs relate to Senate Bill 2 (S.L. 2015-75) “AN ACT TO ALLOW MAGISTRATES … TO RECUSE THEMSELVES FROM PERFORMING DUTIES RELATED TO MARRIAGE CEREMONIES DUE TO SINCERELY HELD RELIGIOUS OBJECTION.”

QUESTION 1: How does a magistrate recuse himself or herself from performing marriages?
ANSWER: The magistrate may use the form Magistrate Recusal from the Solemnization of Marriages, AOC-A-246.

QUESTION 2: If a magistrate recuses from performing marriages, how long is the recusal period?
ANSWER: The recusal is for a minimum of six months, and remains in place until rescinded by the magistrate.

QUESTION 3: Can a magistrate marry anyone during the time of recusal?
ANSWER: No, unless it has been more than six months since the notice of recusal was given to the chief district court judge and the magistrate has rescinded the recusal. See, Magistrate Recusal from the Solemnization of Marriages, AOC-A-246, Section II, Rescission.

QUESTION 4: How can a magistrate rescind the magistrate’s decision to be recused from the Solemnization of Marriages?
ANSWER: If it has been at least six months since the recusal, the magistrate may complete the Rescission portion of AOC-A-246 and deliver it to the Chief District Court Judge.

QUESTION 5: Where is the Recusal/Rescission form AOC-A-246 filed?
ANSWER: The form should be filed with NCAOC Human Resources to be placed in the magistrate’s personnel file.

QUESTION 6: Is the Recusal/Rescission form AOC-A-246 form a public record?
ANSWER: The NCAOC considers the form to be part of the personnel file and therefore, not subject to release as a public record.

QUESTION 7: Are the names of magistrates who have recused themselves public record?
ANSWER: The NCAOC considers the recusal to be a personnel matter and therefore, not subject to release as a public record.

QUESTION 8: What, if any, information will be released to the public as to a magistrate’s decision to recuse?
ANSWER: The total state wide number of recused magistrates.

QUESTION 9: SB2 requires the chief district court judges to ensure marriages can be conducted in each county for at least 10 hours a week over at least three business days. Since magistrates offices are open 24 hours a day, can the chief district court judge set a schedule for when marriages will be performed?
ANSWER: Yes, provided the schedule provides that marriages will be performed on at least three separate days a week and that the total hours are not less than 10 hours a week.


DOMESTIC VIOLENCE

QUESTION 1: Does the “48-hour rule” apply to domestic violence cases involving same sex couples?

ANSWER: It depends on the facts of the case. G.S. 15A-534.1 (a) provides in part, “[i]n all cases in which the defendant is charged with assault on, stalking, communicating a threat to, or committing a felony [under certain articles of Chapter 14] upon a spouse or former spouse or person with whom the defendant lives or has lived as if married, . . . the judicial official who determines the conditions of pretrial release shall be a judge.” However, subsection (b) provides, “[a] defendant may be retained in custody not more than 48 hours from the time of arrest without a determination being made under this section by a judge. If a judge has not acted pursuant to this section within 48 hours of arrest, the magistrate shall act under the provisions of this section.”

If the plaintiff and defendant are current spouses or former spouses, the 48-hour rule automatically applies. If the couple lives together but never married, the magistrate must consider the same factors that the magistrate would consider in any other domestic violence case when trying to decide if the plaintiff and defendant lives or has lived together as if married.

QUESTION 2: Does Chapter 50B apply to same sex couples?

ANSWER: It depends on the facts of the case.

A person seeking a Chapter 50B protective order must have a “personal relationship” with the defendant. A personal relationship exist when the parties:
  1. Are current or former spouses;
  2. Are persons of opposite sex who live together or have lived together;
  3. Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren;
  4. Have a child in common;
  5. Are current or former household members;
  6. Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.
Chapter 50B applies when acts of domestic violence occur between same sex couples 1) who are current or former spouses, 2) have a child in common, or 3) are current or former household members.


ESTATES

QUESTION 1: Prior to the recent same-sex marriage court rulings in Federal Court impacting North Carolina, a same-sex couple was married in another jurisdiction and one of the spouses has since died. Is the same-sex surviving spouse entitled to any or all of the following?
  • Years Allowance
  • Intestate share of surviving spouse, if an intestate estate
  • Summary Administration, if applicable
ANSWER: Yes. Spouses in same-sex marriages are entitled to all the same benefits as spouses in heterosexual marriages. The estate should be administered as any other estate.

QUESTION 2: Prior to the recent same-sex marriage court rulings in Federal Court impacting North Carolina, a same-sex couple was married in another jurisdiction, but one of the spouses died before the federal courts’ rulings. Is the same-sex surviving spouse entitled to any or all of the following?
  • Years Allowance
  • Intestate share of surviving spouse, if an intestate estate
  • Summary Administration, if applicable
ANSWER: The Federal Courts decisions did not address this issue. The surviving spouse or his or her attorney, can file a motion before you to hear evidence regarding whether the same-sex spouse is entitled to any estate benefits.

QUESTION 3: What if the estate had been closed prior same-sex marriage court rulings in Federal Court impacting North Carolina?

ANSWER: The Federal Courts decisions did not address this issue. The surviving spouse or his or her attorney, can file a motion before you to hear evidence regarding whether the estate should be reopened and whether the same-sex spouse is entitled to any estate benefits.


MARRIAGE CEREMONIES

QUESTION 1: Must all magistrates be available at all hours (24/7) to perform marriages?

ANSWER: To maximize efficiency, each county may adopt a schedule establishing specific times during which marriages will be performed. For example, many counties do not conduct weddings at night or on weekends due to criminal case workload considerations. However, under the court rulings and present law, scheduling cannot be used to allow any individual magistrate to discriminate against same-sex couples.
Policies for scheduling magistrates for marriages must be formulated in such a way to ensure a reasonable and equal opportunity for all couples to be married without undue favor, denial or delay. For instance, the procedure cannot lawfully specify that same-sex couples go to Courtroom A and others to Courtroom B, or that same-sex couples need to come on Tuesdays or at alternative specified times only. Under no circumstances can the same-sex-couple be told that they will need to wait for another magistrate when a magistrate is immediately available to perform other weddings. If an appointment process is used, it must be uniform in application and equally available to all couples.

QUESTION 2: Can magistrates be assigned temporary duty outside their county of residence to perform marriages within the judicial district?

ANSWER: Because there may be an uptick in the number of marriages performed by magistrates in light of the recent rulings, increased workload may justify assigning a magistrate outside the county of residence to help perform marriages for a temporary period. This may be especially true during holidays such as Valentine’s Day or for wedding destination locations. If warranted, the chief district court judge may request such temporary assignment pursuant to G. S. 7A-146(9) and 7A-343(11). The request must be in writing, and will be effective upon approval by the Director as the statute permits.
 
 
 
   
 
   
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