Gay & Lesbian Divorce in Massachusetts


BREAKING NEWS: Read about the Supreme Court's rulings on two landmark cases relating to same-sex marriage:

DOMA No More, SCOTUS finds Section 3 Unconstitutional

SCOTUS avoids 14th Amendment analysis on Prop 8 through Standing Analysis, Still a Win?


At Skylark Law & Mediation, P.C. we believe that justice and the law should be blind to race, religion, sex, creed, and sexual orientation. Unfortunately, due to discriminatory laws such as DOMA (the so-called "Defense of Marriage Act") same-sex couples are not treated equally under the current laws of the United States. Even in the Commonwealth of Massachusetts, where gay and lesbian marriage is legal, the discriminatory laws and practices of the federal government and other state governments can cause legal problems for same-sex couples. In addition, because gay and lesbian marriage is a relatively new right in the Commonwealth, we are still learning how the laws of divorce and separation will be applied to these marriages. This site is dedicated to providing information about these issues and the progress towards truly equal rights.

Click one of the links below to learn more about Gay & Lesbian Divorce in Massachusetts and how same-sex divorce is different from opposite-sex divorce even in Massachusetts.


 


Getting Divorced in Mass. for Gay & Lesbian Couples



If you're reading this you are likely considering or are already involved in a divorce. Either way, it is important that you understand your rights in a divorce case in Massachusetts. On our divorce page we have provided answers to many of the common questions that we are asked by our divorcing clients regarding the divorce process. However, for same-sex couples there are some significant differences in how the law applies.

Below you can find an explanation of some of these differences. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.



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How is Same-Sex Divorce Different?

In many ways divorce law in Massachusetts treats same-sex marriages and opposite-sex marriages the same. For that reason we encourage you to review our general divorce information pages as well:



However, it is also important for you to be aware of the few ways in which these cases will differ from opposite-sex cases. If you are facing a same-sex divorce, failing to recognize these differences or hiring counsel that is not aware of these differences could result in a significantly worse financial result in your case. Below we have provided just some of the ways that these cases can differ from opposite-sex divorce cases.

In addition, because of the differences between opposite-sex and same-sex divorces in court, out of court settlement can often better address the unique facts of each case. Collaborative Divorce and Mediation can be helpful in addresing these complicated issues without the risks and cost of court but by still involving experienced professionals in the case. Click here to learn more about Collaborative Divorce or Mediation.

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MARITAL STATUS:

On June 26, 2013, the Supreme Court of the United States declared in United States v. Windsor, that section 3 of DOMA (the "defense of marriage act") is unconstitutional. Previously this section prevented federal agencies from treating same-sex marriages as marriages for benefits and tax purposes. This means that many federal spousal benefits (such as spousal benefits for federal workers) were not be available to same-sex spouses.

Additionally, for Federal tax returns, same-sex married couples could not file under married status. The ruling in Winsdor changed all this and for federal purposes marriages valid in Massachusetts are now also recognized by the federal government. Section 2 of DOMA, however, was not addressed in the Windsor decision and still allows other states to refuse to recognize same-sex marriages from other states. Therefore, if you change residences to another state your marital status may not be recognized.



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ALIMONY:

There are two differences in how alimony may be calculated in a same-sex divorce case. The first difference is that the Section 34 Factors may not be applied the same way in a same-sex divorce case because same-sex marriage has only been available as a right since 2004. The "length of marriage" factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.

The second difference in how alimony may be calculated relates to a taxation issue, which is different for same-sex marriages. On June 26, 2013, the Supreme Court of the United States declared in United States v. Windsor, that section 3 of DOMA (the "defense of marriage act") is unconstitutional. Previously this section prevented federal agencies from treating same-sex marriages as marriages for benefits and tax purposes. The ruling in Windsor changed all this and for federal purposes marriages valid in Massachusetts are now also recognized by the federal government.

Alimony is included as taxable income to the Recipient and tax deductible to the Payor, and with the new ruling in Windsor relating to same-sex divorces the parties are now recognized as married and therefore also have this tax benefit available to them. However, this may not be the case on state tax returns if you or your ex-spouse move to a state that does not recognize same-sex marriages.

You should consult an attorney if you have questions about the Section 34 factors or how these factors can be affected by issues unique to same-sex marriages.



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LENGTH OF THE MARRIAGE:

M.G.L. c. 208 Section 34 lists the factors that the court must consider when awarding alimony or division of property, and one of those factors is "length of the marriage." The "length of marriage" factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.



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PROPERTY TRANSFERS:

On June 26, 2013, the Supreme Court of the United States declared in United States v. Windsor, that section 3 of DOMA (the "defense of marriage act") is unconstitutional. Previously this section prevented federal agencies from treating same-sex marriages as marriages for benefits and tax purposes. The ruling in Windsor changed all this and for federal purposes marriages valid in Massachusetts are now also recognized by the federal government.

Because same-sex spouses and former spouses could not be considered spouses for federal tax purposes, the exemption on capital gain realizations for transfers between spouses did not apply before Windsor. But now all the same tax benefits should apply to same-sex couples regarding the transfer or property between spouses during marriage or incident to a divorce action. Similarly, the transfers of retirement accounts allowed by QDRO between former spouses should now be permitted between same-sex spouses. Previously, the inability to transfer retirement assets without tax implications could severely inhibit the ability to divide marital assets sensibly, so this is a major improvement due to the Windsor decision.



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ENFORCEMENT OF ORDERS OUT-OF-STATE:

A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states. However, Section 2 of the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages. This means that they may also refuse to enforce same-sex Divorce Judgments against their state residents. Court Orders which may otherwise be enforceable across state lines, may lose their effect if your ex-spouse moves to one of these uncooperative states.



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Skylark Law & Mediation, P.C. (formerly Kelsey & Trask, P.C.) is a law and mediation firm located in Framingham, MA that serves the Metro-West communities of Massachusetts and beyond including Norfolk County, Middlesex County, Plymouth County, Worcester County, Bristol County and Suffolk County.

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