Brian D. Perskin & Associates

Divorce Inequality for Same-Sex Couples

The cover story of this week's issue of New York Magazine, "Divorce Equality: When Gay Marriage Ends", detailed the obstacles same-sex couples face, not only when getting married, but also when getting divorced. Due to each state's differing laws regarding same-sex marriage, and the Defense of Marriage Act (DOMA) which defines marriage on the federal level as the legal union between one man and one woman, same-sex couples face numerous legal difficulties when getting divorced that heterosexual couples do not.

Many same-sex couples get married in states other than where they reside, due to their lack of ability to be legally married in their home state. Generally, even states that have no residency requirement to marry do have a residency requirement to get divorced. This means that if you live in Georgia for instance, but married in California when same-sex marriage was allowed in 2008, you can't get divorced in Georgia where your marriage is not recognized but you also can't get divorced and California, unless perhaps you reside there for at least a year to meet the state's divorce residency requirement. As the New York Magazine article explains, this could have several problematic consequences. You cannot get re-married, but if you commit bigamy you can be subject to a criminal prosecution. If you are in an accident and do not have a will, that spouse, regardless of their current relation to you, will be the one who inherits your property and makes critical decisions on your behalf.

When same-sex couples are able to get divorced, other inequalities remain as a result of DOMA. For instance, federal benefits such as pensions and Social Security are taxed in gay divorces but not in straight ones. In New York State, assets acquired during the time a same-sex couple were partners but not legally married do not count towards the definition of marital property, and thus are not divided accordingly in a divorce. This affects couples who may have been partners for many years, acquiring significant assets together, before same-sex marriage was legalized in New York.

In people's discussion of gay marriage, gay divorce is rarely mentioned. But a significant amount of the laws surrounding marriage are about divorce, from equitable distribution to child custody laws. Divorce inequality for same-sex couples should be seriously considered when evaluating state and federal laws regarding same-sex marriage, such as DOMA. Later this year, two cases that challenge DOMA will be heard by the U.S. Supreme Court. Arguments will be heard in March and a decision is expected in June.

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