Marriage between same sex partners is becoming more common. As more jurisdictions in the United States recognize such marriages the number of same sex divorces will increase. At this point in the evolution of gay marriage and divorce we find ourselves in a situation that doesn’t seem sustainable.

In regard to gay marriage, there is a federal law called the “Defense of Marriage Act” also known as DOMA. Under DOMA the federal government doesn’t recognize same sex marriages. This results in same sex marriages not provided with the benefits of federal laws. For example same sex couples that are legally married in a state that allows such a marriage can’t take advantage of federal tax benefits afforded a heterosexual married couple. This can result in very unfair results to a same sex couples. For example if a partner in a legally married same sex couple dies the surviving spouse would be required to pay taxes on property inherited. If the legally married couple was heterosexual, the surviving spouse would be entitled to inherit the property tax free.

Another problem with each states having its own rules concerning same sex marriage is that some same sex couples which are legally married can find that they can’t get legally divorced. For example, if a same sex couple were to legally marry in a jurisdiction that allowed such marriages and then moved to a jurisdiction that didn’t allow same sex marriages, one of two things can happen. The state that doesn’t allow same sex marriage may still allow a couple that was married in a jurisdiction that allowed same sex marriage to divorce; or the state that doesn’t allow same sex marriage may not allow same sex divorce. This can actually produce the following: a state that doesn’t allow same sex marriage won’t allow a same sex couple to divorce!

All of this is very confusing and produces many unfair results. What is needed is a uniform rule throughout the U.S. The U.S. Supreme Court has the opportunity to make such law this year. During March of 2013 there are two cases that are going before the U.S. Supreme Court. One out of California will deal with the issue of same sex marriage in their Proposition 8. The other case out of New York deals with DOMA. It is very uncertain how the Supreme Court will decide these cases. What is certain is that these two cases will be closely watched.

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Jeffrey Peltz

President at Jeffrey B. Peltz, P.C.

Since 1986 we have helped over 20,000 clients in the areas of bankruptcy, family law, immigration and real estate. My law firm is located in Brooklyn, New York. We always provide free consultations.