We know the LGBT community experiences many of the same legal issues as heterosexual couples. However, even in Massachusetts, same-sex divorce involves many complications that put additional stress on top of an already emotionally draining process. Our family law attorneys can advise you on the most recent laws regarding residency, property division, custody, and taxes.
Although Massachusetts and several other states have begun to recognize same-sex marriages, other states are standing firm and will not grant divorces if the marriage never existed in that state. Over 1,100 rights and priviliges gained from marriage are lost to same-sex couples, resulting from the 1996 Defense of Marriage Act. Over 10,000 LGBT individuals have been married since 2004, many of whom are unsure of their legal rights amidst the constantly changing marriage laws.
The Process
There are certainly steps you can take if you are looking for a divorce in Massachusetts or another state. Prenuptial agreements or legal contracts outlining the division of the estate can be helpful if you have a civil union, domestic partnership or marriage license and are anticipating a divorce. If there is not one in place, you can either attempt to go through the divorce yourself and risk an unfair division of property, or have an attorney or mediator guide you through negotiations and create a settlement agreement to make provisions and split your estate. This is usually the least expensive and fairest way to divorce for any couple.
Considerations
Problems begin turning up with the division of property. Judges will consider the length of a marriage when deciding how to split up marital assets. Because Massachusetts is an equitable distribution state, heterosexual couples married for 25 years or longer may see a 50-50 split of property and assets. Same-sex couples cannot take advantage of this if they have only been legally married since 2004. The courts have begun to take this into account, but are slow to react.
Traditionally, alimony is a taxable and tax-deductible payment. Unfortunately, the IRS does not recognize same-sex marriages and so couples are treated as strangers. You would file with a “single” status and would likely be subject to capital gains and gift taxes when large amounts of money and assets change hands. You also cannot use a Qualified Domestic Relations Order (QDRO) for pensions and retirement plans, which would need to be cashed out and taxed.
Another important issue that comes up often is custody. Many couples worry they will be discriminated against by the court. In reality, sexual orientation is not a major factor in determining custody and visitation, but the happiness and welfare of the children are. Spouses that are not a biological parent of a child may want to consider an adoption to protect their rights. Although it is not as necessary in Massachusetts, the adoption may be crucial in other states where same-sex marriages, and therefore some parental rights, are not recognized.
The States That Are On-Board
Recognizes same-sex marriage:
Massachusetts, Connecticut, Vermont, New Hampshire, Iowa
Recognizes same-sex marriages from other states:
New York, Washington D.C., Rhode Island
Recognizes Civil Unions:
New Jersey
Domestic Partnerships with the Rights of Marriage:
California, Oregon, Nevada, Washington
Domestic Partnerships with Some Rights of Marriage:
Hawaii, Maine, Wisconsin, Washington D.C.
** California recognizes same-sex marriages made between May and November of 2008, when Proposition 8 defined marriage as between a man and a woman.
Contact us today for more information about same-sex divorce.