Gay divorce and gay marriage are hot issues due to changing laws and evolving politics. If you are one of the parties to a homosexual marriage, and you are considering divorce, you may face different procedural hurdles than a straight couple would. Because federal law defines marriage as a union between a man and a woman, federal law may not be applicable to your divorce.
Deciphering Divorce Law for Gay Couples
Some gay couples who have married under a state that allows gay marriage subsequently have had difficulty in obtaining a divorce. This is because of the interplay between state and federal laws. Also, if you try to obtain a divorce under a state that did not grant the divorce in the first place, you may not be able to get a divorce. This is a common issue because many gay couples crossed state lines just to get a legal marriage due to local restrictions on marriage between same sex couples. Some states have flat out refused to grant a divorce because they do not have jurisdiction over the marriage.
In other states, such as California and Massachusetts, same sex couples have the same rights to divorce as other couples. That means division of assets and child custody and support issues will be determined by the same standards. Still, in states that allow divorce for same sex marriages, federal conflict with state law can create some cumbersome procedural hurdles.
Some of the federal issues that may be different for gay and straight couples are:
- Tax penalties for division of retirement benefits; and
- Income tax deductions for court ordered support payments.
Essentially, if the federal law is involved, there may be a different set of rules for gay couples.
Getting Legal Advice
It is important to get the help of an experienced divorce attorney in handling your marital dissolution case. An attorney will help you figure out how federal and state laws interplay to determine the procedure for obtaining a divorce if you are part of a gay union. Divorce law is state specific and also handled on a case by case basis, so division of assets and debts, child support and custody issues and other dissolution findings will be determined by the judge based on the facts of your case. You are entitled to handle your case outside of court if both sides can come to an agreement on all dissolution issues. An attorney can still assist you if you decide to handle your divorce out of court.
