The right to love—and loss

As posted by Eve Conant on

"Currently, even in states where the freedom to marry is legal, divorce for gay couples is a legal nightmare.

"Mary Bonauto, civil-rights project director for Gay & Lesbian Advocates & Defenders, says the courts are dealing with all sorts of new issues, such as determining the true length of the partnership. If a couple was together 25 years but was only given the right to marry a few years before divorcing, courts are taking into account the entire relationship when dividing assets.

"And since the so-called Federal Defense of Marriage Act prohibits the government from recognizing marriages of same-sex couples—and, by extension, complicates the possibility of divorce—the tax consequences are severe. In a different-sex divorce, when you transfer property between spouses, says Bonauto, that doesn't trigger income-tax consequences, but that's not the case for gay couples. Same-sex divorcees aren't able to deduct alimony payments, nor are they able to benefit from their former spouse's 401(k). 'In a lengthy-enough marriage, that would be considered as marital property on divorce, and state and federal laws can permit one or both spouses to benefit from that down the line. That's simply not an option for divorcing same-sex couples because of DOMA,' she says. 'So you can have a situation where one partner is accumulating the nest egg while the other watches the kids, but it will never be divisible.'

"The problems increase in a state that does not recognize marriage equality, as is the case with Texas. The couple can potentially be locked forever in unhappy matrimony.

" 'DOMA not only complicates divorce, it undermines the whole purpose of using divorce to end a relationship, fairly settle a couple's financial affairs, and move on. To say that the federal DOMA throws a wrench in the process would be a gross understatement,' Bonauto says. (Several states, including Texas, also have their own DOMA laws, further complicating the process.)"

"The number of marriages of same-sex couples will be recorded for the first time in this year’s census, but just how many of these marriages are ending in divorce is hard to say. By 2006, according to The Boston Globe, between 35 and 45 of the more than 7,300 gay and lesbian couples who married in Massachusetts had since filed for divorce, according to an informal survey. Kim Wright, acting court administrator for the Massachusetts Probate and Family Court Department, tells NEWSWEEK that the department does not tally divorces of same-sex couples differently than heterosexual divorces, so there are currently no updated figures for Massachusetts. Evan Wolfson, of advocacy group Freedom to Marry, expects gay divorce rates to be similar to different-sex marriages: 'We're just as capable of making mistakes and needing change as anyone else.' "

"Some who are opposed to granting divorces see them as a recognition of the freedom to marry, if even just for the short purpose of splitting up. Divorce lawyer Schulte, who is working with one of the men in the Dallas case, says he is in no way petitioning for the legalization of marriage equality in Texas: "We don't have a dog in that fight. We just want them to get a divorce." And yet, many advocates see the two battles inextricably intertwined, so much so that there are resources on the Freedom to Marry Web site focused on divorce and separation, as well as on the Web site of the Human Rights Campaign. 'One of the reasons gay people, like others, need the freedom to marry is divorce,' says Wolfson. 'It's a system of guidelines and rules and structure to help people through a painful passage.' "

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For more information from Freedom to Marry on divorce for same-sex couples click here.