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Same-Sex Divorce in Marriage Equality States – The Challenges

For the past decade, it has been difficult to keep up with the advance of same-sex marriage throughout the country because it has quickly transformed both the image of marriage and the legal field that defines it. The process for divorce, in states where same-sex marriage is legal, is the same for straight and gay couples. Although this is true, the speed of change involved with same-sex marriage has outstripped the courts ability to compensate. This makes divorce even more challenging to same-sex couples, not to mention the financial and emotional toll of the process.

When same-sex couples divorce, they choose a number of options available. While the most widespread and common option is to file a divorce suit, some pursue a collaborative divorce or even participate in mediation. From the initial petition to the division of property and custody issues, the steps and issues are similar to those encountered by heterosexual couples. In fact, some states like Minnesota have enacted laws that erase any difference between heterosexual and homosexual divorce. These laws specify that homosexual divorce cases shall be treated as if they were in fact heterosexual divorces.

Despite special provisions from the law, there are still a few roadblocks that make a same-sex divorce quite challenging.

• Residency. If the divorcing couple lives in one of the 35 States that do not currently recognize same-sex marriage, at least one spouse will have to establish residency in a jurisdiction that does in order to obtain a legal divorce. This can be a lengthy and inconvenient process.

• Taxes. The IRS looks to the State of residency to determine tax outcomes. If the State of residency does not recognize same-sex marriage, the IRS will not treat property divisions and distributions as untaxed marital assets, but rather as simple transactions subject to taxes. The financial implications of this rule could mean a lot of “extra” burdens to divorcing couple.

• Social Security. Spouses married for ten years or more are entitled to collect Social Security benefits from a former spouse – but if the same-sex couple lives in a State that does not recognize same-sex marriage, this claim will be denied as well.

• Multiple Marriages. Many same-sex couples are married in several different jurisdictions, either because they initially traveled to marry and later their home State legalized same-sex marriage or for other reasons. As a result, divorce is often not a simple case of petitioning one court, but a maze of different jurisdictions.

To navigate these muddy parts of the divorce waters, same-sex couples should confer with legal counsel early on in order to minimize confusion and to move on, in the most convenient way possible.