The Nuts & Bolts of Same-Sex Marriage, Parenting, and Divorce

At Last: Same Sex Marriage
There are a lot of misconceptions and misinformation out there regarding marriage and parenting between partners of the same sex. It is important before entering into any relationship, that you are aware of all of the rights, obligations and potential complications that may occur.

What is the Defense of Marriage Act or DOMA?

This act was enacted by Congress to “define and protect the institution of marriage”. This was an act passed in response to Hawaii’s lean toward legalizing same-sex marriage back in 1996. Opponents of same-sex marriage feared this happening in other states and that other states may be compelled to recognize the marriages occurring in states that legalize it. Therefore, DOMA was enacted.
Section 2, of DOMA which is still in existence basically allows each state to determine whether they will give effect to the same-sex marriages allowed in other states.
Section 3, of DOMA, defined marriage as between one man and one woman.
DOMA denied same-sex married couples the federal rights and benefits of marriage.

On June 26, 2013, the US Supreme Court struck down Section 3 of DOMA, finding the statute violated the 5th Amendment and with that granted married same-sex couples the same benefits and protections under federal law as opposite-sex married couples.

What rights are now allowed same-sexed couples in New York?

• Federal & New York State income tax return filing status: can now file “married” and it entitles them to the marital deduction
• Recognized for estate and gift tax; applies even if the couple lives in a jurisdiction that doesn’t recognize same-sex marriage; Same-sex married couples can transfer property to each other free of gift tax
• If divorcing, spousal maintenance is now a tax deduction for the payor and income for the recipient
• Retirement plans are now subject to transfer and distribution on divorce without penalty
• Social Security survivor benefits are available as well as social security spousal election
• NYS recognizes that a child born of a same-sex marriage is the legal child of both parents

However, please speak with an attorney or one knowledgeable about parental rights and obligations of same-sex parents before or even after you have entered into this parental relationship as there are some consequences that you need to be aware of and an adoption may be essential and recommended. Once a relocation occurs, DOMA Section 2 is still in existence! So the relationship may not be recognized! Adoption may be essential.

• Veteran’s benefits are now available to same-sex spouses
• Immigration status and green card sponsorship
• Same-sex spouses whose employers provide health insurance benefits are obligated to provide the insurance and COBRA benefits to same-sex spouse of an employee
• Family Medical Leave Act Protections

Same-sex couples can now legally marry in 17 states and the District of Columbia. States that haven’t enacted the equality act do not have to recognize the marriage. Hopefully, DOMA Section 2 will one day be also struck down.
Be also wary, that if you entered into a civil union in Rhode Island or Delaware, these States have adopted legislation that the civil unions are automatically converted to marriages! Whether you wanted it or not!

These are the nuts and bolts, and please once again if there are children involved make sure you contact either an attorney or attorney/mediator that knows the potential complications to avoid any in the future!

What we can Offer

Same-sex couples can gain tremendous benefits from using divorce mediation to create divorce and parenting agreements, as well as prenuptial agreements.
Like divorce for other married couples, dissolving a partnership or same sex marriage can be costly if using the traditional divorce process. The process can drag out for months. There can be bitter fights over who gets the car, the couch, and how much time and when each party can spend with the child or children. Partnerships or same sex marriage couples can sit together in a room privately to work out the details of their separation with an experienced mediator.
The result is less emotional distress for all of the parties involved. Divorce mediation helps individuals to work through the terms of the separation or divorce in a peaceful, private, process. It allows the final agreements to more fair and suitable for all parties involved.

Robyn D. Weisman, Esq.
Divorce Mediation & Family Services of New York, Ltd.

Author: May 7, 2014

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