Divorce is difficult for any couple, but same-sex spouses face divorce headaches that don’t affect opposite-sex partners. To start, if you live in a state that doesn't recognize same-sex marriages or other legal relationships, you may have trouble getting a court divorce where you live. What’s more, wherever you divorce, discriminatory federal tax laws mean that you are likely to face higher costs than divorcing same-sex spouses. This article takes a look at both issues. Everything here applies to couples who have married in one of the states that allows same-sex married, or registered as domestic partners or civil union partners in a state where those relationships are the legal equivalent of marriage.
Can You Get a Divorce Where You Live?
If you and your spouse got married in a marriage-equality state, but your current state doesn’t recognize same-sex marriages, a court may be reluctant to accept your divorce case. It may say that it doesn’t have jurisdiction to handle your divorce -- that is, the court may claim that it lacks the power to divorce you because, according to state law, you aren’t married.
If that happens, you may think you can just travel back to the state where you married and ask for a divorce there, but that's likely not true. States have residency requirements for obtaining a divorce, and one of you would have to live there long enough to establish residency and get the divorce. Moving is not usually a realistic option, but if you can’t work it out any other way, one of you may need to temporarily relocate.
Before taking drastic measures, however, it’s worth attempting a divorce in your home state. If you and your spouse can resolve any disputes before you go to court, you may find a sympathetic judge who will take your case. If not, you might ask for an annulment of your marriage on the grounds that it wasn't legally valid in your home state -- though this is not ideal because you never want to give a court the opportunity to rule that a same-sex union is invalid.
If you married or registered your partnership in more than one locality, it is very important that you legally end it in all of those places. To learn more, see Same-Sex Divorce: Dealing With Multiple Registrations.
Briefly, here’s the problem with divorce and taxes for same-sex spouses: When you divorce, the settlement you make with your partner may involve paying your ex money, either as a property settlement or as alimony or spousal support. If you were heterosexual and married, those financial transactions related to your divorce would be tax-free events. But because of the federal Defense of Marriage Act (DOMA), your relationship is not a federally recognized marriage – and that means you aren’t eligible for the broad exemptions from taxation that are bestowed on straight spouses who divorce.
Payments you make to your ex as a result of your divorce could be considered a gift from you to your ex, or could be classified as income on your partner’s taxes. It’s not even clear that same-sex couples can avoid taxes on child support, which is neither taxable nor deductible in a heterosexual divorce, because the technical rule only exempts payments to a former “spouse.”
It is absolutely certain that this is an unfair situation, but what to do about it is far less clear. It may take years to sort out these questions, with possible audits of taxpayers, appeals from IRS and tax court rulings, and likely changes in court and government codes. In the meantime, as you and your soon to be ex approach your property settlement and support arrangements, we encourage you to talk with a local tax attorney or accountant who is familiar with the rules for same-sex couples in your particular state.
Adapted from A Legal Guide for Lesbian & Gay Couples, by Frederick Hertz and Emily Doskow.