Although same-sex marriage was legal in California for just under five months, there are still a number of legally married same-sex couples who could be facing legal challenges should they decide to get a divorce. Several states currently allow same-sex marriage, but obtaining a same-sex divorce has a number of legal hurdles that have yet to be tested. The existence of the Defense of Marriage Act does not allow the federal government to recognize same-sex marriages, complicating matters greatly.
The majority of family law statutes are governed at the state level but when it comes to certain laws regarding retirement accounts and child custody issues, federal law plays a role. When a couple chooses to divorce there are a number of issues that come into play including the division of property, spousal support or alimony and child custody and support issues, if children are involved. Since the majority of same-sex marriage laws are written by supporters, says one family law attorney, same-sex divorce is not often considered in those laws.
A domestic partnership agreement, like a prenuptial agreement can be an impetus to a smooth and clear cut path to divorce, but without that agreement challenges are sure to arise. Child custody issues can be especially challenging if only one parent is listed as a legal parent to a child. Then there is the issue of child support. Heterosexual parents are allowed to deduct child support payments from their taxes but same-sex couples do not always have the same tax benefits.
Divorce depends on where you live, not where you got married. And if you got married in California when same-sex marriage was legal and now want to get a divorce, is it allowed? Can a state that does not recognize same-sex marriage recognize same-sex divorce? The property division issues are also complex in a same-sex divorce for several reasons, one being the fact that financial transactions related to a divorce are tax-free for heterosexual couples, not so for same-sex couples.
Another financial disparity concerns military or federal pensions and Social Security benefits. Unlike a heterosexual divorcing couple, a same-sex partner would not have the same rights to receive a portion of his or her partner's benefits. These issues require family law attorneys to look for other ways in which to divide marital property. It is likely the U.S. Supreme Court will rule on the legality of the Defense of Marriage Act sometime this summer, which could provide some clarity on many of these issues.
Source: Portland Press Herald, "Same-sex divorce raises new legal issues," Eric Russell, Jan. 5, 2013
Our Fresno, California law firm handles a variety of family law issues, including divorce, property division, child custody and domestic partnership agreements.