Implications of Windsor and Prop 8 on Same Sex Divorces

July 31, 2013

samesex marriage

By overturning DOMA, the Supreme court has now paved the way to make it easier for same sex divorces in states such as New York that recognize same sex marriages. This means that the Windsor and Prop 8 decisions allow same sex married couples who divorce and meet residency requirements the ability to legally receive spousal and child support, over a 1,000 federal benefits and divide marital property such as pension funds, cash and real estate the same as heterosexual couples have been able to do when they divorce.

The overturning of DOMA means that same sex married couples no longer have to fear court to legalize their divorce, as long as they are legally married and one spouse is a resident of a State that recognizes same sex marriage such as New York. Whether you are a same sex married couple or a heterosexual married couple wishing to divorce in New York, in order to meet New York residency laws, at least one spouse must establish residency in New York at least 90 days prior to the filing of a divorce petition.

Federal Tax Exemption

Same sex couples divorcing may now also take advantage of the federal gift tax exemption to transfer property tax free as part of their divorce settlement. Under the federal gift tax laws, married spouses can transfer property tax free during their marriage and when they decide to divorce as long as the receiving spouse is a U.S. citizen. This means that married couples are not limited to the $14,000 federal gift tax exemption rule.  A same sex married spouse is now also legally recognized as a beneficiary for federal tax benefits such as social security.

Division of Property Prior to Marriage

Under New York law, only assets that the couple have accumulated during the marriage are part of the automatic property division in a divorce settlement. However, many same sex couples resided together for years before being able to marry and accumulated joint assets during the time they were unmarried. Unless those assets were held jointly, including title to real estate or bank accounts, the assets may not be considered as part of the marital property division. The applicability of this law is clear cut for heterosexual couples, but the court may need to look more closely on a case by case basis for same sex couples wanting to divide assets accumulated together before marriage since an argument can be made that they did not have the opportunity to marry.

How Moving to Another State that Does Not Recognize Same Sex Marriage Affects Your Rights to Divorce?

Couples who were married in New York or another state that recognizes same sex marriages and then later decide to move to another state that does not recognize same sex marriages have different challenges if they decide to divorce. Divorce laws apply to your state of residency. So if you both reside in a state that does not recognize same sex marriage, chances are that state will not allow you to legally divorce. This means that you would not be able to legally receive spousal support, federal benefits or take advantage of the federal gift tax exemption if you split up and decide to transfer property valued at more than $14,000.

If you are thinking of relocating to another state, you may want to reconsider if that state does not recognize same sex marriage even if you never divorce. You would still lose certain rights such as the ability to health insurance under your spouse’s health plan, filing joint tax returns, family leave and other rights including inheritance rights if your partner passes away such as the ability to receive federal benefits unless further changes are made to federal and state laws.

New York Divorce Lawyer

Making the decision to divorce is a serious one whether you are a same sex couple or a heterosexual couple and should be discussed with a New York divorce lawyer in order to find out all your legal rights and obligations.