Gay Divorce: All the Emotional Confusion, Twice the Legal Red Tape

By Monique Zamir, BounceBack.com Editorial Staff

Going through a divorce is taxing enough when all the legal proceedings are clear and uniform in every state. But when different states have different laws on same-sex marriage, and therefore same-sex divorce, it makes for a far more complicated, emotionally and financially trying divorce proceeding.


Say that you're a gay couple that got married in Massachusetts, and now live in Texas. Like so many heterosexual marriages, yours has fallen apart, and you want to file for a divorce. You face a problem. Texas doesn't recognize same-sex marriages, so there are no precedents set for a same-sex divorce. You file for a divorce anyway, just to see what happens, and a judge in Austin grants it. But then Texas Attorney General Greg Abbott appeals the decision and claims that he is protecting the "traditional definition of marriage" by doing the same for divorce. Now it feels like you've hit a wall. The attorney general says you can only void the marriage, and that the state can't dissolve a marriage that it never recognized as valid. Voiding the marriage, however, would render it invalid. It's also how they handle cases of inbreeding, and essentially it'll be like the marriage never legally existed. In this particular case, specifically of former couple Angelique Naylor and Sabina Daly, the district judge argued that the attorney general filed his appeal a day too late, and that he could not intervene with the divorce ruling. The attorney general's office disagrees, and what results is much confusion.


There are numerous couples facing this situation. If you currently live in a state that doesn't recognize same-sex marriages and you want a divorce, you can either try to tackle the state's courts, or you can relocate to the state in which you got married, establish residency and file for divorce. Most states have a six-month residency requirement before you're allowed to file for a divorce.


Even in a state like Massachusetts that does recognize same-sex marriage, there still are hurdles. Because the Federal Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex marriages, it therefore complicates any possibility of divorce. Heterosexual divorcees don't face income-tax consequences when property is transferred between spouses. In a gay divorce, however, the divorcees are not able to deduct alimony payments, nor can they benefit from their spouses 401(k). Mary Bonauto, civil-rights project director for Gay & Lesbian Advocates & Defenders, told Newsweek, "In a lengthy-enough marriage, that [a 401(k)] would be considered as marital property on divorce, and state and federal laws can permit one or both spouses to benefit from that down the line. That's simply not an option for divorcing same-sex couples because of DOMA. So you can have a situation where one partner is accumulating the nest egg while the other watches the kids, but it will never be divisible."


Same-sex couples in want of a divorce face a long challenge ahead of them. In states that don't recognize same-sex marriages, you face an undetermined period of time in unhappy matrimony. And for most people, relocating to another state for the sole purpose of obtaining a legal divorce isn't feasible.


What do you think should be done to make these laws easier for same-sex divorce?


Monique is a writer and recent college graduate transitioning to the working world. She currently resides in New York.


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