Tumultuous legal landscape creates obstacles to same-sex divorce

May 30, 2013

Tumultuous legal landscape creates obstacles to same-sex divorce

Article provided by DiBella Law Offices, P.C.
Visit us at http://www.dibellalawpc.com

Massachusetts pioneered the same-sex marriage movement in the United States when it became the first state in the nation to legalize same-sex marriage in 2004. As the issue gains traction in America's mainstream, a growing number of states have modified their laws to recognize marriages between same-sex partners, but for now those states remain in the minority.

Because of the myriad state laws concerning same-sex marriage, along with the Federal Defense of Marriage Act (DOMA), many same-sex couples have found that the divorce process to be far more complicated than they expected. Therefore, same-sex couples considering divorce should familiarize themselves with the potential obstacles and seek legal help early on in the divorce process to help minimize costly and time-consuming complications.

Residency matters

Where a couple lives is often one of the biggest factors affecting the same-sex divorce process, especially if they no longer reside in the same state where they were married. This is because couples living in states that do not recognize same-sex marriage may not be able to obtain a divorce in their home state. Further complicating matters is the fact that in states where gay and lesbian marriages are recognized, including Massachusetts, divorce is typically only available to couples that have met certain residency requirements. This situation leaves some same-sex couples without a clear path to end their marriages.

Child custody

As with any divorce, same-sex divorce can be far more complicated for couples with children because of issues like child custody, visitation and child support, all of which must be addressed during the divorce process. For same-couples, the legal issues may be even more complicated, depending to some extent on the degree to which the family relationships have been formalized. If only one partner in the marriage is legally recognized as a parent of the child, for instance, the other partner may be at risk of losing his or her parental rights if the marriage should end.

Property division

Even in Massachusetts and other states that recognize marriages between same-sex partners, property division during divorce is often more costly because DOMA prevents these unions from being recognized for federal tax purposes. Thus, for example, while opposite-sex spouses have the benefit of transferring assets to one another during divorce without triggering gift taxes, same-sex spouses are typically incur gift tax liability for any transfers exceeding $14,000 in value.

An experienced attorney can help

Even in states like Massachusetts, where same-sex marriages are recognized, many of the surrounding legal issues have yet to be ironed out. Therefore, gay and lesbian spouses considering divorce are encouraged to seek advice from a lawyer with extensive experience in the area of same-sex marriage and divorce. An attorney who is deeply familiar with this new and quickly evolving area of the law can advise divorcing spouses of their rights and options while helping them avoid unnecessary roadblocks and expenses.