New Same-Sex Marriage and Divorce Issues

Gay and lesbian couples who break up are finding themselves in legal quagmires. The mishmash of conflicting state and federal laws concerning child alimony, custody, and taxes for gay couples can be a nightmare – especially for those who move between states.

Same-sex couples in the United States can only marry in Massachusetts, but many of the other states that now recognize same-sex couples send them to divorce court if they break up.

Since January of 2000, nearly 39,000 couples have registered in California as domestic partnerships, which same-sex couples and certain senior citizens are also allowed to do. At first, domestic partners had only to file a simple notice of termination with the secretary of state when they wanted to break up.

But since the Registered Domestic Partners Rights and Responsibilities Act came into effect in January of 2005, partnerships now have to get legally divorced, just as married couples do in most cases.

Taxes, Alimony, Pensions, Property, and Other Issues

For many ex-couples, problems surface when they try to calculate their federal income taxes. A judge in one state may order one ex-partner to make payments to the other – as a judge may order an ex-husband to pay alimony to his ex-wife. But the federal government doesn't recognize same-sex couples, so the IRS will treat the money that the ex-partner receives as a gift, and not alimony. It will be taxed at a higher rate, and it will not be tax-deductible, as it would be in straight divorce alimony cases.

There are complications in many other areas of law for same sex-couples. Similar issues complicate out-of-state property distribution, and the collection of pension and retirement benefits. It is yet to be seen how state courts will divide property owned by couples in other states.

“Courts are going to be facing cases involving same-sex relationships that they haven't faced before,” said Ellen Kahn of the Family Project for the Human Rights Campaign.

Child Custody

The discrepancies between different state and federal laws are most alarming when child custody is involved. Some states don't recognize two mothers or two fathers as legal parents, while some do, and problems can arise if either partner moves between states with different stances.

For example, it is predicted that The United States Supreme Court will have to settle a case where a lesbian couple entered into a Civil Union in Vermont and had a child. Upon breaking up, the biological mother took the child and moved to Virginia. A Virginia court has ruled that the non-biological mother has no custody rights at all, but the Vermont court ruled that she does.

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