The advance of same-sex marriage through the country has transformed both the image of marriage and the legal field that defines it so quickly that it’s been difficult to keep up. While theoretically divorce is the same process and experience for heterosexual and homosexual couples, the speed of change involved with same-sex marriage has outstripped the courts ability to compensate, in many ways, making divorce – already an emotionally and financially challenging experience – even more challenging for same-sex couples.
The Basic Process
The basics of divorce are the same for homosexual couples: They can pursue a suit for divorce, they can participate in mediation, or they can pursue a collaborative divorce. The steps and issues are similar to those encountered by heterosexual couples, from the initial petition to the division of property and custody issues. In some jurisdictions, such as the State of Minnesota, the laws enacted have even specified that homosexual divorce cases shall be treated as if they were in fact heterosexual divorces, erasing any differences.
However, same-sex divorce has a number of unique challenges associated with it:
Residency. If the divorcing couple lives in one of the 35 States that do not currently recognize same-sex marriage, at least one spouse will have to establish residency in a jurisdiction that does in order to obtain a legal divorce. This process can be lengthy and inconvenient.
Taxes. The IRS looks to the State of residency to determine tax outcomes. If the State of residency does not recognize same-sex marriage, the IRS will not treat property divisions and distributions as untaxed marital assets, but rather as simple transactions subject to taxes. This can have immense financial implications for divorcing couples.
Social Security. Spouses married for ten years or more are entitled to collect Social Security benefits from a former spouse – but if the same-sex couple lives in a State that does not recognize same-sex marriage, this claim will be denied as well.
Multiple Marriages. Many same-sex couples are married in several different jurisdictions, either because they initially traveled to marry and later their home State legalized same-sex marriage or for other reasons. As a result, divorce is often not a simple case of petitioning one court, but a maze of different jurisdictions.
The list of special challenges goes on. Same-sex couples contemplating divorce should tread carefully and confer with legal counsel early on in order to minimize confusion.
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