As of 2014, 19 jurisdictions have legalized same-sex marriage: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, New Jersey, Washington, Hawaii, and Washington D.C.
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.
Does the State I Live in Recognize Same-Sex Divorce?
Generally, states require a period of residency before they will grant a divorce. This presents a problem to same-sex couples that reside in a state that does not recognize their marriage. Some states now have laws that allow courts to preside over same-sex divorce proceedings if the couple was married in the state but now resides elsewhere.
The following states allow non-resident same-sex divorce: California, Delaware, Hawaii, Illinois, Minnesota, Oregon, Vermont, and Washington, D.C. Missouri courts have performed same-sex divorces despite the state not allowing gay couples to marry.
What Are the Tax Implications of Same-Sex Divorce?
While state laws may afford same-sex couples the same rights to divorce as opposite-sex couples, the interactions of state and federal law complicate the issue. The IRS announced that it will recognize same-sex marriages as married for federal tax purposes. However, the state the couple resides in may not recognize the marriage and could require each spouse to file separately.
In 2013, the Supreme Court overturned the Defense of Marriage Act (DOMA), allowing same-sex couples to receive federal benefits, including social security benefits as well as federal tax benefits. As such, same-sex couples can transfer property free from federal taxation upon dissolution of the marriage.
How Is Child Custody Determined in Same-Sex Divorce
The law of most states prefers for custody of children to be given to their mother. However, same-sex couples naturally complicate these laws. 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.
Additionally, if one spouse is the biological parent of the child, a court may not recognize shared custody with the non-biological parent. Adopting the child at birth should ensure that the non-biological parent’s relationship is recognized.
Should I Consult an Attorney?
Since 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. Additionally, the dissolution of assets and child custody arrangements can be difficult. If you have questions about same-sex divorce, you should consult an family lawyer.