Divorce For Same-Sex Couples
Because of the federal Defense of Marriage Act (DOMA) that refuses to recognize marriages between same-sex spouses, divorce for gay couples presents some special circumstances. It is critical that your attorney understand the unique problems that divorcing spouses face if they are gay.
Why isn’t divorce for me the same as it is for straight couples?
Federal law does not recognize same-sex marriage. Gay couples are granted a divorce in Massachusetts on the same terms as straight couples when it comes to matters of state law: dividing property and assigning custodial responsibility for children. But because the federal government does not recognize same-sex marriage, gay spouses do not enjoy the favorable federal tax treatment accorded straight spouses. (For purposes of state tax law, gay and straight spouses are treated the same way.) There may well be federal tax consequences associated with the distribution of property in a gay divorce that would not be present in a straight divorce.
That is why it is important that your attorney have experience with the special problems gay couples face when they end their marriages. It is especially important that your attorney review the boilerplate language in your divorce agreement because provisions that implicate federal tax law will not apply to you.
Does this mean that divorce is more complicated for gay couples than for straight couples?
Not necessarily. The divorce process itself is exactly the same. But the potential tax consequences of the transfer of marital property often call for creative solutions that are not required when straight couples divorce.
Will I be able to get a divorce outside of Massachusetts?
Perhaps in some states. Your marriage will probably not be recognized by a state with a DOMA (defense of marriage act) or a constitutional amendment prohibiting marriage between two persons of the same sex. Such a state would be highly unlikely to grant you a divorce since to do so would require recognizing your marriage. It is more likely that states with civil unions (Vermont, Connecticut, and New Jersey) would recognize your Massachusetts marriage for the purpose of granting you a divorce. It is also possible that states like New York and Rhode Island will take jurisdiction over a Massachusetts marriage for the purpose of granting a divorce even though they do not offer marriage to their own residents. Divorce is controlled by the state that divorces you, not the state that married you. You will have to meet the residency requirement and all other requirements of any state in which you file for divorce.
Will Massachusetts dissolve a legal union from another state?
Yes. Massachusetts has dissolved several Vermont civil unions. If you are in a civil union in Vermont, Connecticut, or New Jersey, you must dissolve those legal ties before you can marry in Massachusetts. In May of 2008, California became the second state, following Massachusetts, to permit same-sex couples to wed. Massachusetts will divorce those married couples in the same way it divorces any married couple. California couples whose domestic partnerships were established under AB 205 will also be able to have those legal ties dissolved in Massachusetts courts. Of course, in order to invoke the jurisdiction of Massachusetts courts to dissolve unions legally established in another state, one or both members of the couple must meet Massachusetts jurisdictional requirements.