Barbara J. Katzenberg, Attorney at Law

Same-sex divorce in the wake of DOMA's demise

Massachusetts is one of a few states that allow members of the same sex to marry, a status allowed by a 2004 State Supreme Court ruling. Now the U.S. Supreme Court has struck down the federal Defense of Marriage Act, which was enacted by Congress in 1996.

Experts say that those gay and lesbian couples who want a same-sex divorce - which is more complicated than heterosexual divorce - will probably benefit from DOMA's recent scrapping. One benefit is that divorcing same-sex couples will no longer have to pay federal inheritance or gift taxes during property division; where spousal support is part of a divorce settlement, the ex-spouse who must pay it can now deduct support payments from his or her federal income taxes just like any heterosexual divorced spouse.

Drawbacks, however, may come when a same-sex couple has not jointly adopted a child, Regardless of whether or not that child is biologically related to the couple, making custody disputes more probable and possibly more costly. Even if he or she offers financial and emotional support to the child, a nonbiological parent may still be not be deemed "in loco parentis" - or have the same standing as the natural parent. The nonbiological parent may have to apply for custody even if the other parent is unfit to care for the child.

Both same-sex marriage and divorce have been complicated legal areas because of the differences in laws from state to state. DOMA's dissolution has made some areas of state and federal law clear and made others such as divorce, custody, support and domestic partnerships cloudier.

Because of this, divorcing same-sex couples should seek legal advice from a family law attorney who is experienced in navigating same-sex marital disputes. Such an attorney can provide sound legal advice in all matters related to divorce, including custody and financial issues.

Source: Market Watch "Supreme Court simplifies gay divorce" Quentin Fottrell, June 26, 2013

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