Same-sex marriage is currently legal in nine states, including Massachusetts, as well as Washington, D.C. However, same-sex divorce is already starting to affect the legal system and same-sex couples in these states. The complications arise from same-sex couples who move out of the state in which they married and from legislation that affects same-sex marriage.
When a Massachusetts same-sex couple is married in their home state and then decides to reside in another state, that state might not recognize their marriage as a legal union. If the couple is not married according to that state's laws, they cannot file for same-sex divorce there, either. They would then be forced to return to Massachusetts to file for divorce.
Another problem is existing legislation that prevents same-sex couples from obtaining divorces as easily as opposite-sex couples. One example is the Defense of Marriage Act. This act penalizes same-sex couples who transfer funds between one another's financial accounts, whereas opposite-sex couples receive no penalty. This also prevents them from equitably dividing assets during a same-sex divorce.
Child custody laws also can complicate same-sex divorce more than opposite-sex divorce. Having children together also complicates opposite-sex divorces, but some laws do not recognize a child's same-sex partners as legal parents. Attorneys often recommend that same-sex couples legally adopt any children that they have together in order to avoid a custody battle.
Marriage is an institution that many same-sex couples are now struggling to obtain. However, same-sex divorces are equally important because these couples should be able to end a marriage that they do not wish to continue. This is not an issue that many individuals consider when contemplating the rights of same-sex couples, but it is an important one.
Same-sex divorce is a major issue that affects many Massachusetts residents because it presents legal issues that can cross state lines. The U.S. Supreme Court will likely address the problems caused by DOMA, hopefully in the upcoming summer months. This could resolve some problems that same-sex couples face when seeking a divorce, but it still leaves many questions. Until this issue is clarified, same-sex couples may wish to be proactive and educate themselves on the potential complications of divorce.
Source: The Portland Press Herald, "Same-sex divorce raises new legal issues," Eric Russell, Jan. 5, 2013