Divorce Proceedings for Same Sex Marriages

Divorce: Is It Any Different for Same Sex Marriages?

Unhappy gay coupleAs more and more states legalize gay marriage, and as time passes, gay marriage starts to take on many of the attributes of heterosexual marriage, including the reality that some marriages don’t work out. If you are a party to a same sex marriage and your relationship has irretrievably broken down, what’s the process for ending it? Does it look any different than a divorce between a man and a woman?

The first thing to understand is that marriage is a legally conferred status. Because of that, you must generally take legal action to change your status. So, if you were married in a state that legally recognized same sex marriage at the time, you must file for divorce to legally change your status to single. Your safest bet would be to file in the same state in which you were married, as those states yet to recognize same sex marriage generally don’t recognize same sex divorce, either.

Once the divorce has been filed, the process may look exactly the same as a heterosexual divorce. That was not the case before the Supreme Court ruled portions of the Defense of Marriage Act (DOMA) unconstitutional in 2013. Before that decision, parties to same sex marriages did not enjoy the same federal tax benefits that heterosexual copies did. The IRS issued a ruling, however, after the Supreme Court decision, that same sex couples who were legally married (married in a state that recognized same sex marriage at the time of the ceremony) have all the tax benefits of marriage, regardless of where they live. That includes the right to take a federal tax deduction for any alimony paid.

With respect to the traditional issues involved in a divorce—custody and visitation, support and property division—the process looks just like it does in a traditional divorce proceeding.

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Montgomery County Bar Association
Pennsylvania Bar Association
International Academy of Collaborative Professionals