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Same-Sex Divorce Update
As of 2007 three states have legalized same-sex marriage: Massachuchettes, California, and Connecticut. A handful of others have created parallel systems of civil unions or domestic partnerships, which are available to same-sex couples, and entail most of the same rights and responsibilities as traditional marriage, including divorce. While state laws may afford same-sex couples the exact same rights to divorce as opposite-sex couples, the interactions of state and federal law complicate the issue.
The biggest complication usually involves dissolution of assets, and the federal tax implications. For example, in the divorce of an opposite-sex couple, retirement savings or pension plans can be split between the parties tax-free. However, because federal law does not recognize same-sex marriages, any division of property after the divorce of a same-sex couple would be treated as a gift from one stranger to another. Federal tax law allows tax-free gifts of $12,000 per year. After that, they are taxed heavily. Because the assets of a marriage are likely to far exceed $12,000, it is likely that any division of property will be subject to this gift tax.
Another issue comes up with child custody. The law of most states prefers for custody of children to be given to their mother. However, if both spouses are female, and they legally adopted a child, they are both the mother of the child. If both spouses are male, neither of them could be considered the child’s mother.
Because the vast majority of states do not recognize same-sex marriages, it may be difficult for a same-sex couple to seek a divorce in a state other than the one in which they were married. Some state supreme courts have already ruled that, because they do not recognize same-sex marriage, they will not grant a divorce to same-sex couples married in other states.
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