Same Sex Divorce after July 2013

With Section Three of the “Defense of Marriage Act” declared unconstitutional by the US Supreme Court in the July 2013 ruling of the United States v. Windsor, marriage equality celebrated a groundbreaking victory. With this ruling, same-sex couples who are legally married can receive many of the federal protections previously only granted to heterosexual couples, including access to health insurance, more options for Social Security income, increased veterans’ benefits and retirement savings.

While this is a significant step in the right direction, it only applies to same-sex couples that have an opportunity to marry. Even for those who are married, depending on where they reside, they may still be restricted from enjoying over 1,000 federal benefits available to those in heterosexual marriages. Furthermore, Section Two of DOMA, which is still intact, permits individual states to disregard the legality of marriages of same-sex couples who tied the knot in other states.

Massachusetts was the first state to legalize same sex marriage in 2004. Yet, regardless of sexual orientation, not all relationships work out and with the opportunity for marriage comes the possibility of divorce. Due to the fact that same sex marriage is still fairly recent, same sex divorce poses new legal questions. The laws are in flux, changing as various regulations are being challenged.

For same-sex married couples who currently live in Massachusetts, at least they have the opportunity to divorce. (Most married same sex couples residing in states which do not recognize same sex marriage, they cannot divorce; they must stay married.) The divorce process frequently has added complexities for same-sex couples divorcing.

There may be additional questions and concerns. For example, what about the children of a same sex couple when one parent moves out of state? Or how long should alimony be considered when the couple lived together for many years prior to marriage?

When considering divorce, regardless of sexual orientation, you will most likely want to consult a divorce attorney to discuss your options. For same-sex divorce, you should consult a family law attorney with experience and knowledge of the relevant current laws and regulations.

While the recent Supreme Court decision regarding DOMA has provided more options to same-sex couples divorcing in Massachusetts, these divorces still are emotional situations with significant difficult legal questions. Divorce is rarely an easy decision; for a same-sex couple dealing with a more complicated legal landscape, it can feel overwhelming. Lisa J. Smith is an experienced and knowledgeable collaborative attorney and mediator. She is aware of the unique challenges posed by same-sex divorce, and she has the experience and knowledge to handle the intricacies of each individual case.