Over the last several years, a number of changes were made to Massachusetts
marriage laws. Perhaps the most significant was passing a same sex marriage
law which went into effect in May of 2004. However, that law also led
to changing residency requirements for marriage.
In 2008, the Commonwealth of Massachusetts overturned a 1913 law regarding
residency requirements to be married. While this may not seem significant,
one aspect that was overlooked and impacts
same sex divorce is a residency requirement of one year to file for divorce. However, residency
requirements may be the least of the issues faced by same sex couples.
Burdens differ significantly
When a same sex couple divorces and there is a division of property, it
is done based on the assets they share as a couple. However, since DOMA
is still the law, same sex couples often run afoul of federal gifting
laws and will pay significant taxes as a result of transferring assets.
Additionally, since same-sex marriage in Massachusetts has only been legal
since 2004, couples who had existing relationships before this time may
have to fight for an equitable division of property that they jointly
acquired prior to the marriage.
Children of same sex marriage
As with any divorce where children are involved, child custody, visitation
and support issues are always a concern. Heterosexual marriages typically
involve children of both spouses. Same-sex couples may adopt (male or
female couples) or in the case of female couples, they may opt to become
impregnated through artificial insemination and the child may later be
adopted by the other partner. This makes custody, support and visitation
issues far more complex since courts still favor the biological parent.
In same-sex relationships, there may not be a biological parent involved.
If you are a same-sex couple who was married under the laws of the Commonwealth
of Massachusetts, chances are your divorce is going to be very complicated. At the
Law Office of Robert W. Kovacs, Jr., a Worcester divorce attorney, we are aware of how the laws may impact
your divorce. Call us today and set up a consultation and let us help
you through this difficult time.