Since 2004, same-sex couples have been allowed to marry in Massachusetts. A handful of states have followed suit and begun allowing gay marriage (namely, Connecticut, Iowa, New Hampshire, New York, Vermont, and the District of Columbia). Some couples have traveled to these states to obtain a same-sex marriage, even though their home state does not permit or recognize their marriage. Further, some same-sex couples that have married in states permitting their marriage have since moved to states that do not recognize their union.



What happens if these couples want to later dissolve their marriage?

A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states.  However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages.

The rationale behind not allowing same-sex divorce is that those states will not dissolve a legal relationship that they refuse to recognize as valid. For a same-sex married couple that married in Massachusetts but later moved to a state that, like Texas, which won't permit their divorce, obtaining a divorce may prove to be far more complicated than for their opposite-sex counterparts.

Massachusetts requires that parties to a divorce case must have lived together in Massachusetts, and one of the parties must still live in the state when the cause for divorce occurred. Alternatively, if the cause of divorce occurred in Massachusetts, or if one of the parties has lived in Massachusetts for one year, the state will be able to hear their divorce case. If a same-sex couple married in Massachusetts and later moved to Texas, they can't get divorced in Texas or Massachusetts unless they can meet these requirements in Massachusetts, which usually means moving to Massachusetts for at least some period of time.

On the other hand, an opposite-sex couple that married in Massachusetts but later moved to Texas would simply have to meet the jurisdictional requirements of Texas if one of them decided to file for divorce there.

This is just one of the ways that the Federal Law DOMA and the discriminatory enforcement of laws in some states relating to same-sex marriages continues to cause unequal treatment of these same-sex couples.

Should you have any questions about divorce, same-sex or otherwise, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one hour initial consultation.

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.

Unfortunately, the current state of the law creates two classes of married citizens. Traditional opposite sex marriages are one class and same sex marriages are treated as second class by the limitations created by DOMA (the poorly named "Defense of Marriage Act"). DOMA prohibits the federal government from recognizing same-sex marriages. Although the current federal administration has indicated they will not defend DOMA in Court, it is still currently the law of the land. That means that many of the tax issues described in our last few blog posts do not apply in the same way to same-sex marriages.

Issue #6. SAME SEX MARRIAGES: Below we have described the numerous ways that DOMA changes how same-sex marriages are treated when it comes to taxes:

MARTIAL STATUS: For Federal tax returns, same sex married couples cannot file under married status. Therefore, their tax status upon divorce does not change on their federal returns.

ALIMONY: Because same-sex former spouses cannot be considered spouses for federal tax returns, they cannot take a tax benefit associated with a former spouse. Therefore, alimony payments made to a same-sex former spouse do not qualify as tax deductible income to the payor and cannot be categorized as alimony payments for federal tax purposes.

PROPERTY TRANSFERS: Because same-sex spouses and former spouses cannot be considered spouses for federal tax purposes, the exemption on capital gain realizations for transfers between spouses does not apply. Similarly, the transfers of retirement accounts allowed by QDRO between former spouses is not permitted between same-sex spouses. The inability to transfer retirement assets without tax implications can severely inhibit the ability to divide marital assets sensibly.

These limitations imposed by DOMA create extra considerations that must be made in dealing with same-sex divorce cases.

Click here to read Divorce and Taxes: Issue #1. Marital Status.