Unequal divorce

by on July 26, 2008  •  In Marriage

What’s tougher to get than a same-sex marriage? A same-sex divorce – Los Angeles Times

By Sue Horton, Los Angeles Times Staff Writer
July 25, 2008
PROVIDENCE, R.I. — On the morning of May 26, 2004, Cassandra Ormiston and her long-time partner Margaret Chambers arose early, hopped in the car and raced across the border into Massachusetts.

Then-Gov. Mitt Romney, a staunch opponent of same-sex marriage, had already ordered some Massachusetts cities to stop issuing marriage licenses to gay couples who lived outside the state, and Ormiston and Chambers hoped to get to nearby Fall River before the ban took effect there.

By afternoon, they were married….

When, after two years of marriage, the 10-year relationship soured, Chambers filed for divorce. That put the couple into a legal limbo that is becoming increasingly common as same-sex couples married in one state try to divorce in another.

A judge in Family Court, where divorces are handled, asked the Rhode Island Supreme Court for a ruling on whether his court had jurisdiction, given that Rhode Island doesn’t recognize gay marriage. The state Supreme Court decided that the women weren’t legally married in the eyes of the state and therefore couldn’t get divorced.

Chambers then tried filing for divorce in the state’s Superior Court, but last month a judge there ruled that the court had no jurisdiction over marriage dissolutions. A Massachusetts divorce isn’t an option because only residents who have lived in the state for a year can file there. …

Around the country, same-sex couples are discovering that getting divorced can be far more complicated than getting married. …[E]ven in Massachusetts and California, where married gay couples have the same right to divorce as heterosexual couples, a clash between federal and state laws makes the process anything but equal.

[Gay couples] face financial consequences that heterosexual couples don’t. Among them:

* If a judge orders a heterosexual couple to divide a pension during a divorce, federal law allows the pension to be divided without triggering early-withdrawal penalties. Divorcing gay couples must pay the penalties.

* Court-ordered alimony payments can be deducted from federal income taxes in straight divorces, but not in same-sex divorces.

* In gay divorces, when a judge orders one party to give money or other assets to a spouse, those assets may be subject to gift or income taxes.

* When real property is transferred from joint ownership to one gay spouse by a court order, capital-gains taxes are often triggered. …

Boston attorney Jo Ann Citron, who has handled gay divorces in Massachusetts and New York, said couples seldom anticipate divorce when they marry. Nevertheless, she said, "the single most important benefit of marriage is divorce . . . a predictable process by which property is divided, debt is apportioned and custodial arrangements are made for children."…


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