Family Law Attorneys

The Challenges of Same Sex Divorce

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.