Gay Marriage and Divorce

Planning Considerations for Same-Sex Spouses in the Event of Divorce or Death


Marriage has always been governed by state law, and it is only in very recent history that select states began revising their definitions of marriage to acknowledge the rights of all couples to be married. While Massachusetts made same-sex marriage legal in 2003 via the decision in Goodridge, it was not until the landmark 2015 decision in Obergefell v. Hodges that the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marriage, making same-sex marriage legal in all 50 states. Finally, same-sex couples could avail themselves of the many legal benefits of marriage that opposite-sex spouses enjoy. However, same-sex spouses often face unique and complex legal issues in the event of divorce or death, and their legal rights are unfortunately still not always secure. Some of these challenges can be avoided or minimized with careful and strategic planning.

Marital Agreements

Common in any divorce are determinations regarding the division of assets and potential spousal support. A major factor is the length of the marriage, which may be less straightforward for same-sex spouses. If a relationship between a cohabitating same-sex couple spanned 20 years prior to the legalization of same-sex marriage, yet their marriage of only … Keep reading

Divorce and Space Crimes


The First Crime in Space! Recent headlines from The New York Times and other prominent news agencies drew in readers stating that the first crime in space had allegedly been committed. The articles went on to discuss the thorny privacy and jurisdictional issues given that NASA was involved and the crime was purported to have occurred on the International Space Station, where astronauts from the United States, Russia, Japan, Europe and Canada orbit the Earth. At its heart, however, the supposed first crime in space is a bitterly contested domestic relations matter involving income, assets, custody of a child, and de facto parent status.

Summer Worden and Anne McClain (a decorated NASA astronaut who was tapped for the first all-female spacewalk, and is in consideration to be the first woman on the moon) were married in 2014. Ms. Worden has a son, who was born approximately one year before the parties met.

By 2018, the parties’ relationship had broken down, and Ms. McClain, who had no legal status as a parent to Ms. Worden’s son, approached a Texas Court asking for shared parenting rights to the child and “the exclusive right to designate the primary residence of the child.” … Keep reading


Mother hugging her daughter.Freshly back to work from maternity leave, it warmed my new-mommy/divorce-lawyer heart to see this week’s U.S. Supreme Court decision affirming a loving mother’s right to share in the ongoing care and custody of children she helped raise during a long-term same-sex relationship. While the opinion itself speaks much more to jurisdictional issues and the Full Faith & Credit Clause of the U.S. Constitution than it does to gay rights, the V.L. v. E.L. case represents a significant victory for gay-rights advocates in Alabama, despite the best efforts of that state’s Chief Justice to ignore or outright defy social and legal developments advancing the rights of homosexual couples.… Keep reading


With the announcement of last week’s Supreme Court decision, proponents of same sex marriage rejoiced and Facebook became much more colorful. After a weekend of celebrating the new-found rights of my gay and lesbian friends, neighbors and colleagues, I sat down today to read all 103 pages of the majority decision and dissenting opinions, including a particularly “colorful” dissent from Justice Scalia.

How did this issue get to the Supreme Court?… Keep reading

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Hi there,

There have been rumors for months that the Supreme Court was going to make a final decision about how America will handle gay marriage.

As of today, I’m thrilled to report that gay marriage is now the law of the land!

For the couples around the country who have waited for years to make their unions legally official, for their children, for all of us who champion equality – this is so good on so many levels.

Justice Anthony Kennedy, author of today’s ruling legalizing same-sex marriage throughout the United States, said it best.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.  In forming a marital union, two people become something greater than they once were.  As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded

… Keep reading
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Ten Years After Goodridge, Gay Marriage is Here to Stay


Hi there,

Until I got online last night I hadn’t realized that we are ten years out from the Goodridge decision. I can still remember where I was when I read it back in 2003, and it was the only time I had ever cried (I was so moved by the language) when reading a decision. It wasn’t until last night that I realized Peter Zupcofska, my partner in the Private Client Group here, had written an amicus brief on behalf of Goodridge.

In the 10 years since Goodridge, gay marriage has become woven into the social fabric of Massachusetts. Initially due to DOMA, the legal process of both gay marriage and gay divorce was extremely complicated.

Over the course of time other states joined Massachusetts, some not allowing gay marriage but allowing gay divorce of couples legally married in another state.

This past June, DOMA was overturned by the Supreme Court. Since then, gay divorce, at least in Massachusetts and the other states that allow gay marriage/divorce has become simpler, cleaner and more straightforward.

Currently gay marriage is also in the gossip news as the Cheney family seems to be enmeshed … Keep reading

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Revenue Ruling 2013-17


Hi there,

My terrific tax colleague, Jen Green, has a quick update on taxes for same-sex married couples. This is terrific!

Best,

Nancy

Revenue Ruling 2013-17The IRS has issued a notice extending Revenue Ruling 58-66 to same-sex marriages.  In Revenue Ruling 58-66, the IRS stated that a couple would be treated as married for purposes of Federal income tax filing if the couple entered into a common-law marriage in a state that recognizes that relationship as a valid marriage.  The IRS further concluded in Revenue Ruling 58-66 that its position with respect to a common-law marriage also applies to a couple who entered into a common-law marriage in a state that recognized such relationships and who later moved to a state in which a ceremony is required to establish the marital relationship.  In this new Revenue Ruling 2013-17, the IRS states that once a same-sex couple is validly married, that couple is deemed married for federal purposes no matter where they live.… Keep reading

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U.S. Supreme Court Declares DOMA Unconstitutional: What You Need to Know


Hi there,

What an exciting week!  I’m pleased to share the following alert regarding DOMA that my colleagues Lisa Cukier, Christine Fletcher and Peter Zupcofska put together today for clients and friends of our firm.  As we celebrate the fall of DOMA there are still lots of legal issues facing gay and lesbian couples in the states that don’t recognize gay marriage.

Best,

Nancy

U.S. Supreme Court Declares DOMA Unconstitutional: What You Need to Know

Yesterday in a historic decision, the Supreme Court of the United States struck down the federal Defense of Marriage Act (DOMA) by declaring it unconstitutional. In the case, United States v. Windsor, the Supreme Court ruled that same-sex couples living in the states that recognize their marriage are entitled to receive the same federal benefits as any other married couple in those states.This important ruling has myriad implications and touches upon many areas of law affecting same-sex couples across the country. For example, estate plans for same-sex couples were previously drafted to take advantage of benefits available within the 13 states and the District of Columbia that recognize same-sex marriage; nevertheless, estate plans had to be drafted around DOMA, which denied … Keep reading

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Applying for Social Security Survivor’s Benefits During the DOMA Appeal


Hi there,

The Supreme Court announces today whether or not they are going to take up a challenge to the Defense of Marriage Act in a case arising out of Social Security benefits. As promised, here is a different point of view to last week’s post.  This one is authored by my partner Lisa Cukier, one of our experts in the intricacies of gay and lesbian divorce.

Best,

Nancy

The Defense of Marriage Act (DOMA), which was passed in 1996, denies federal benefits to married same-sex couples.  DOMA denies the existence of same-sex marriages by stating that marriages may only be between one man and one woman. Consequently, the federal government is allowed to deny gay spouses certain marriage-based advantages that straight spouses routinely and unquestionably receive, such as tax advantages, health and retirement benefits, Veteran’s benefits, Social Security Administration benefits and other federally based advantages, thus treating gay married Americans as second class citizens.

Social Security benefits, such as survivor’s benefits that permit a widow to receive her deceased spouse’s Social Security after her spouse’s death, are one such federal benefit. Gay widows and widowers are ineligible for their late spouse’s Social Security simply because they … Keep reading

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Defense of Marriage Act and Social Security


Hi there,

An important date in the DOMA battle is coming up soon.  On November 30, the Supreme Court will announce whether it will be taking up the matter in its next term.  In light of that, there is considerable discussion of what gay and lesbian married couples should do to maximize their rights should DOMA be struck down.  This week my Burns & Levinson partner, Evelyn Haralampu, has a piece on DOMA and Social Security benefits.  Next week, our colleague Lisa Cukier will share an alternative view on the subject.

Keep reading below.

Best,

Nancy

The Defense of Marriage Act (DOMA), which was passed in 1996 under the Clinton administration, denies federal benefits to married, same-sex couples.  Because DOMA does not recognize same-sex marriage, no federal benefits based on marriage (such as Social Security survivor benefits, joint federal income tax filing, etc.) are available to same-sex, married couples.

A number of federal courts have found DOMA unconstitutional.  In February of this year, the Obama administration ordered the Justice Department to stop defending the constitutionality of the law.  However, for state law purposes, 32 states do not recognize same-sex marriages.  The U.S. Supreme Court is scheduled to decide … Keep reading

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