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Wednesday, May 5, 2010

The Fight for Gay Marriage and Gay Divorce

As described in a recent article on CNN Living (Serious legal hurdles for gay divorce), just because gay and lesbians can get married doesn't mean they can get divorced.

Gay and Lesbian couples who marry in one of the few states that allow gay marriage may not be able to get divorced if they move to another state. Currently only Massachusetts, Iowa, Connecticut, New Hampshire, Vermont, and the District of Columbia issue marriage licenses to same-sex couples.

As the CNN article describes, the Texas Attorney General is appealing a ruling by a Texas Judge allowing a lesbian couple (who had been married in Massachusetts) to get a divorce in Texas. An attorney who represents a gay couple awaiting the Texas decision noted "Ironically, if the attorney general [of Texas] is so against gay marriage, why is he trying to hard to keep these two men together?"

Regardless of the ruling in that case, getting divorced in other states isn't the only hurtle facing gay and lesbian couples who want a divorce. DOMA, the Defense of Marriage Act, denies same-sex spouses access to many federal benefits. In a same-sex divorce case, even in Massachusetts, the couple will not be able to accomplish certain typical divorce resolutions in the same way as an opposite sex couple.

For example, a typical division of an asset in a divorce is to transfer a portion of one party's retirement asset to the other. This can be accomplished without tax consequences via a Qualified Domestic Relations Order, but since the IRS does not recognize same-sex marriage, this same transfer would have significant tax consequences in a same-sex divorce. Another example is the tax treatment of alimony. The payment of alimony by the payor to the recipient is taxable to the recipient and tax deductible to the payor. This allows for a shifting of the tax burden, and also usually for a lower tax burden overall because some of the income is shifted to a lower tax bracket. Again because the IRS does not recognize same-sex marriages, same-sex couples who have an alimony order will not receive this tax benefit.

For a further description of how DOMA affects same-sex marriages and the current cases challenging it ( ) check out this article written by our Law Clerk, Jonathan R. Eaton: Defense of Marriage Act: Ability of the Federal Government to Deny Access to Benefits to Spouses in Same-Sex Marriages.

1 comment:

  1. As a deeply rooted social and cultural institution, as well as a legal institution, marriage is a powerful force to be reckoned with. Legally, Marriage gives the state the power to recognize whether a Family legally exists. This power allows couples to be together such as through the political and religious recognition of marriage.
    The basic principles of marriage are always being shaped and reshaped. In the twentieth century alone, marriage has gone from being structured as a position of male dominated authority over women, to becoming a gender neutral set of rights and responsibilities that spouses have with regard to each other and to the state.The basic principles of marriage are always being shaped and reshaped. In the twentieth century alone, marriage in the U.S. and some European countries went from being structured as a position of male dominated authority over women, to becoming a gender neutral set of rights and responsibilities that spouses have with regard to each other and to the state.The basic principles of marriage are always being shaped and reshaped. In the twentieth century alone, marriage in the U.S. and some European countries went from being structured as a position of male dominated authority over women, to becoming a gender neutral set of rights and responsibilities that spouses have with regard to each other and to the state.
    The basic principles of marriage are always being shaped and reshaped. In the twentieth century alone, marriage in the U.S. and some European countries went from being structured as a position of male dominated authority over women, to becoming a gender neutral set of rights and responsibilities that spouses have with regard to each other and to the state.
    In most industrialized societies, marriage has positioned women inside the home to care for the domestic aspects of life, while placing men in the public sector. Marriage has historically been one of the most gender-biased institutions, having different implications for men and women as well as their children (Master-Slave Laws were finally abolished in 1979). Ironically, this is a time when many demographers take for granted the declassification of marriage, in other words, the fading away of the social and legal meanings of matrimony that structure how married people live. More people tend to think twice before they get married. Couples enter into their first marriage at a later age than in the past. A considerable percentage of couple’s cohabitate, that is, live together for a period of time before getting married. Today families are becoming more diversified through cross cultural and social changes. Men, instead of women, become the stay at home parent, there are more interracial marriages (thanks to Loving V Virginia, 1967), single parent and blended families, and finally gay and lesbian families.
    Today's vision of marriage as a union of equal partners, joined in a relationship both romantic and empirical, is still viewed as radical. Same-sex marriages are not legally recognized in the United States (with the above state exceptions). This is just as archaeic as the belief that the world was flat.
    It further shows the hypocrisy of the Political/Religious system when a Couple has married in a state which does recognize the Constitutional right to marry (See the 14th amendment), then are prevented from divorcing as is legally recognized in all states.
    Anyone who has been married or witnessed the workings of a marriage from within knows that divorce and death are potential risks taken when a couple marries. It is a barbaric and backward approach when a religious point of view takes precedent over a legally recognized union.
    Divorce has been part of many cultures for as long as records have been kept, and it will certainly always be a part of life to some degree. Divorce is difficult, to say the least, preventing a divorce can have disatrous and detrimental effects on all parties involved.
    If the IRS and states can't recognize this, where we stand in the next twenty years?

    ReplyDelete

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