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Same Sex Family Law Archives

As Gay Marriages Rise, Now Comes The Case For Same-Sex Divorce

gay marriageIn 2008, Lauren Beth Czekala-Chatham traveled with her then-partner from their home in Mississippi to San Francisco, a few months after gay marriage became legal in California. They’d been together for about a year and a half before they decided to get married.

After the ceremony, they went back to Mississippi, where they lived together. Then a year later, they decided to split up. The state of Mississippi doesn’t recognize same-sex marriage, however, so they couldn’t get a divorce there.

“It’s a very unfortunate predicament to be in, because you realize you cannot get divorced in your state of residence,” says Kody Silva, a divorce attorney in Washington, D.C. “And the state you were married in will not allow you to get divorced unless you go back and essentially become a resident of that state.”

Silva says that you would have to live in the state you got married in for at least six months – or longer in some states. Establishing residency means getting utilities and a driver’s license in your name.

“You don’t want to have to move in order to achieve a divorce that your straight couple friends … Read More »

Change in Federal Regulations After DOMA is Partially Struck Down

On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor, in which it reviewed, and ultimately struck down, Section 3 of DOMA. Section 3 of DOMA stated:

‘‘In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’’

The meaning of the Supreme Court’s ruling is now the federal government must treat legally married same-sex couples the same way they treat legally married opposite-sex couples.

Since the Windsor decision was issued, all the different federal departments and agencies, including the IRS, Social Security Administration, Veterans Affairs, and Medicare, have been scrambling to update their regulations so that legally married same-sex couples have the same rights and benefits of legally married opposite-sex couples. The new regulations are continuing to develop and evolve, but certain … Read More »

Same-sex Marriage Updates

The Supreme Court ruled Wednesday that legally married same-sex couples should get the same federal benefits as heterosexual couples.

The court invalidated a provision of the federal Defense of Marriage Act that has prevented married gay couples from receiving a range of tax, health and retirement benefits that are generally available to married people. The vote was 5-4.

Justice Anthony Kennedy wrote the majority opinion.

Same-sex marriage has been adopted by 12 states and the District of Columbia. Another 18,000 couples were married in California during a brief period when same-sex unions were legal there.

The court has yet to release its decision on California’s ban on same-sex marriage.

‘‘Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,’’ Kennedy said.

‘‘DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,’’ he said.

He was joined by the court’s four liberal justices.

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

Scalia read his dissent aloud. Scalia said the court should not have … Read More »

Same Sex Divorce and Continuing Problems with DOMA

On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor, which declared Section 3 of the Defense of Marriage Act (commonly known as DOMA) unconstitutional. What many people don’t realize is the Supreme Court did not review or rule on Section 2 of DOMA in United States v. Windsor, and thus Section 2 remains good law.

Section 2 of DOMA states:

“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

More simply put, states that do not recognize same-sex marriage may still refuse to recognize same-sex marriage performed in other states where it is legal. Thus, if a same-sex couple was legally married in a state that recognizes same-sex marriage, and then moves to a state that does not … Read More »

Same Sex Prenuptial Agreements

Massachusetts is one of twelve of states, along with the District of Columbia, which recognize same-sex marriage. Since 2004, same sex couples have had the right to marry in Massachusetts. Like their opposite-sex counterparts, same-sex couples can enter into a prenuptial agreement to protect their respective assets during the marriage.

Contrary to popular belief, a prenuptial agreement does not protect just one spouse; it protects both spouses. It must be fair and reasonable for both parties. It can be a very specific agreement dealing with all aspects that may be covered in a potential divorce, including distribution of property and assets, alimony, child support, and child custody. Or, the agreement can be narrow, and just address one or two issues, like protecting a specific property owned by one spouse-to-be.

A prenuptial agreement also requires both spouses-to-be to make a full and accurate disclosure of their assets and liabilities. This way neither spouse enters the marriage with any financial secrets.

However, there is a unique aspect to a same-sex couple’s prenuptial agreement. This is because of the federal law, Defense of Marriage Act … Read More »

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