Same Gender Marriage…and Divorce?

If you are noting big changes in the marital and family law area, take note, quickly, to keep track of the monumental changes affecting the legal status of same gender couples. Compared by many to the Civil Rights movement that swept through the country in the late 40’s and 50’s, the legal front has been a busy place for changes to the marital rights of same gender couples. The pace, however, has been faster, accelerating with each new proposed legislation and state vote, with changes taking place monthly and even weekly.

Take note of just two of these recent changes:

  • Illinois state legislature votes to recognize same gender marriages…affective June, 2011
  • New York state legislature votes to recognize…affective July, 2011
  • On Wednesday, July 20th, Senator Patrick Leahy convened the first ever congressional hearing on the repeal of the 1996 Defense of Marriage Act (DOMA).


And more changes are planned as I write…

Whether or not you are an informed and passionate follower of the issues associated with the recognition of same gender marriages, it might occur to you that one of the alternate sides of this issue (there are many) might pertain to divorce. As many state laws have changed, the national law has not. The 1996 Defense of Marriage Act (DOMA) has two main parts, one of which is Section 3 which says “that for all federal law purposes, the word “marriage” means only a legal union between one man and one woman as spouses, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. This means that for all federal law purposes (including taxes, social security and Medicare), people in same-sex marriages in states that allow them are treated as legal strangers.”


The legal protections and rights afforded divorcing spouses, therefore, do not apply to divorcing same gender couples. There is no recognition of community property in Texas, for example, or no right to spousal support or transfer of assets between parties without gifting taxation issues. This may not be the most important consideration for those fighting for the repeal of DOMA but as a divorce financial planner with many clients saved from complete financial ruin by the legal rights afforded divorcing spouses, it is something that warrants further consideration. As with many issues fraught with emotion and potentially life changing affects, advance consideration and planning can sometimes offer the best protection. As a financial planner, I would recommend discussing the potential issues for dividing a financial partnership like a marriage, opposite or same gender, before the couple ties the knot. Pre-nuptial planning – titling of assets, consideration of beneficiary designations, estate planning documents, sharing of income, expenses, and debts, etc. – can prevent the emotional dissolution of a relationship from ruining a financial transition to independence. Relationships, formally or legally recognized or not, are worth the time and energy of a financial professional considerate and experienced enough to discuss the issues of post divorce financial concerns.