Recently in Same-Sex Marriage Category

October 21, 2013

The Legal Implications For Same-Sex Couples Living in Non-Recognition States

Divorce in Non-Recognition States by Ellie AckermanThe New York Times recently published an editorial about Minneapolis mayor R.T. Rybak, who is recruiting same-sex couples living in states that don't recognize same-sex marriage to marry in his city. His admitted goal is to bring in millions of dollars to Minneapolis through the hospitality industry and in taxes. And, now that the Supreme Court has overturned the Defense of Marriage Act (DOMA), he is quick to point out that same-sex marriages performed in Minneapolis will be recognized under federal law, even in non-recognizing states.

While, as the Times wrote, Mayor Rybak's actions make for a "fun" story and a "refreshing" reflection on how far marriage equality has come, same-sex spouses who marry in a state that recognizes same-sex marriage and then move to a non-recognizing state should be aware of possible problems regarding a potential divorce. While progress has been made on the same-sex marriage front, the situation is more complicated for same-sex divorces because these marriages are not "portable." Couples who marry and divorce in a recognizing state should have no problem. However, couples who marry in a recognizing state and then move to a non-recognizing state may find themselves in a no-man's land of sorts: They cannot divorce in the state where they married, because most states (including New York) have a residency requirement that must be met before the state will adjudicate a divorce, and they cannot divorce in the state in which they reside because while the federal government has to recognize legally entered same-sex marriages, the states do not, and a couple cannot divorce in a state that will not recognize its marriage.

Some non-recognizing states may grant divorces, or may grant civil union dissolutions rather than divorces. The latter could cause problems in other states in which the same-sex couple would still be considered married; a civil union dissolution may not meet the requirements for divorce. However, there is still significant uncertainty about how same-sex divorces would be handled even in these states.

Additionally, even while the couple is married, problems arise in non-recognizing states. The couple would have to review any legal document in which they refer to each other as spouses (such as wills and powers of attorney) and change that language so that the state will enforce it.

While, as the Times wrote, same-sex couples can certainly go to one of the 13 states that has legalized same-sex marriage to get married, they - and all legally married same-sex couples - should consult a matrimonial attorney and a trusts and estates attorney before moving to a non-recognizing state. These attorneys will be able to advise same-sex couples of the potential hazards of living, divorcing, and even dying in a non-recognition state.

Ellie AckermanEllie Ackerman
570 Lexington Avenue
Suite 1600
New York, NY 10022
eackerman@vaccalaw.com

July 2, 2013

Supreme Court Strikes Down DOMA

Vacca - DOMA.jpgOn June 26, 2013, the United States Supreme Court declared parts of the Defense of Marriage Act (DOMA) unconstitutional. The decision, a huge civil rights victory for the gay community, will require federal law to recognize same-sex marriages the same way they recognize heterosexual marriages. This will grant same-sex spouses (at least in states that recognize same-sex marriage, such as New York) countless benefits that had previously been denied them under the statute. Now, same sex couples will be able to file joint income tax returns, enjoy spousal and survival status under Social Security, inheritance and estate laws, and be entitled to COBRA and other health insurance benefits. Effects on immigration have been among the most dramatic and immediate, as American citizens can now apply for permanent resident visas, or green cards, for their foreign-born same-sex spouses. Couples began receiving notification of approval for green cards as early as June 28.

As matrimonial attorneys, we are excited about this decision, not only because of the impact it will have on the same-sex couples that are married or contemplating getting married in New York, but also because of the ways in which it will affect the practice of matrimonial law. Previously, any agreement between same-sex couples, whether prenuptial or separation, required drafting around the federal benefits to which married heterosexual couples are automatically entitled with no way to compensate for the omission. Granting same-sex spouses the same federal rights as their heterosexual counterparts allows not just for more equality but also more uniformity under the law.

We applaud the Supreme Court for recognizing this and look forward to further advancements in same-sex rights.

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

September 25, 2011

Same-Sex Divorce: It's Complicated

New York is now the seventh (and largest) jurisdiction to recognize same-sex marriage. This is an important and wonderful right for many couples and their families, which was evident in the media as we saw the first of these smiling and ecstatic couples marrying on July 24, 2011 and the days that followed.

While it may not seem romantic to think about these happy couples facing divorce and separation after they have waited so long for the right to marry, same-sex couples need to be extra vigilant to protect themselves and their families in the event that they decide to end their marriage. Some of the issues about which they need to be concerned include:

Lack of Federal Rights
The Defense of Marriage Act (DOMA), defines marriage as a legal union between persons of the opposite sex and permits states to refuse to legally acknowledge same-sex marriages performed in other states. The result is that a multitude of federal rights and obligations given to heterosexual spouses are unavailable to same-sex spouses. The Obama administration has refused to defend DOMA, claiming it is unconstitutional, but its existence makes divorces for same-sex couples even more complicated. For example, same-sex couples are not entitled to tax-free distribution of their spouse's pension and retirement funds, they cannot deduct spousal support payments from their income, they do not have the option of collecting social security based upon their spouse's income if they've been married for at least 10 years, and they are not entitled to COBRA benefits which would allow them keep their medical insurance offered through their spouse's employer for 36 months following divorce. Same-sex couples who divorce must consider this lack of federal rights when dividing their property and determining issues of spousal support.

Jurisdiction Issues
If a same-sex couple marries in New York, moves to one of the 44 states that do not recognize same-sex marriage, and then decides to divorce after being away from New York for one year, they will neither be able to divorce in that new state nor in New York. This is because the new state does not recognize their marriage and New York no longer has jurisdiction over it. It is therefore imperative that same-sex spouses think very carefully before moving to a state that does not recognize their marriage and that they draft a postnuptial agreement to define and protect their rights and obligations.

Child-Related Issues
In New York, there is a presumption that a child born during a marriage is the child of both spouses. The complication for same-sex divorcing couples in determining custody and child support arises when the non-biological parent has not adopted the child and they are living in a state that does not recognize their marriage. To protect both parents' rights and avoid the complications that may arise if the parents move away from New York, it is imperative that the non-biological parent adopt the child as soon as it is born.

The Importance of Prenuptial and Postnuptial Agreements
While prenuptial and postnuptial agreements cannot change the fact that a state may not have jurisdiction over the marriage of same-sex partners, it can make it clear that New York law will govern the issues of a marital dissolution. Additionally, these agreements offer many other protections that same-sex spouses and their children need in the event of divorce. For example, prenuptial and postnuptial agreements can outline:
- How child custody and child support will be handled (as long as children are already born at the time the agreement is written).
- How to handle the division of property between spouses given the fact that while these transfers are not taxed by states recognizing same-sex marriage, they are still taxed by the IRS.
- How to handle spousal support, which is also given preferential tax treatment by New York, but not by the IRS.

Same-sex couples need to make sure they have all the legal and tax information they need before they marry. By having honest conversations with their future spouses (and themselves) and speaking with lawyers and accountants who can advise them on divorce, trusts and estates and tax issues, they will be able to deal with many issues that if left unaddressed, could have long lasting negative repercussions for them and their children.