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Trends in Same-Sex Marriage Law

By: Jill Di Sciullo
Attorney, Morris James LLP


The law surrounding same-sex marriage and domestic relations practice is changing rapidly. Now that the Supreme Court has declared Section 3 of the Defense of Marriage Act invalid, these laws are even more in flux. As this area of the law continues to evolve, practitioners need to stay aware of the changes in their own states so that they remain current on the status of the law in their state and the surrounding states as it may impact their practices. However, even as the law changes to allow same-sex marriages, practitioners have to remain mindful of the intersection between state laws and federal laws as those laws pertain to division of property, tax impacts, and alimony awards.

The Debate over Legalization

The parts of the Defense of Marriage Act that were recently challenged dealt with the denial of certain federal benefits to same-sex couples who were legally married in the states in which they lived. Those couples were being denied certain social security benefits, survivor benefits for pensions, immigration benefits, and family leave. Those portions of the law were struck down. However, Section 2 of DOMA was left intact. Section 2 of DOMA allows states to refuse to recognize valid civil marriages of same-sex couples. This negatively impacts couples who have a valid union in one state then attempt to move to a state that refuses to recognize that union. This will negatively impact these couples for the purpose of estate planning, tax filing, and taking advantage of other benefits of marriage in their states that are only provided to married couples. Further, these couples may not be able to dissolve their relationship if they live in a state that does not recognize it in the first place. Some states, such as Delaware, built in a “work-around” by allowing these couples, if they married in Delaware, to still file for divorce in Delaware even if neither party remains in Delaware.

Any of the cases heard by the Supreme Court recently are key in setting the course for legalization of same-sex marriages over the past few years. The most significant change, however, is the ground swell of support from the grassroots causes supporting the movement to legalize same-sex marriage in the individual states. The collective conscience of the nation is turning toward the legalization of same-sex marriage.

Key Takeaways

  • Stay informed and updated on the state’s statutes and case law regarding same-sex marriage. Because the law is changing so rapidly, stay tuned in to what the legislature is discussing, and look for relevant legislation being presented impacting the status of same-sex couples.
  • Because federal law is different for same-sex marriages, ensure you are up to date on tax laws. Certain property or pensions may have different tax treatments. Do not depend on the invalidation of Section 3 of DOMA to cause instant change. At the same time, anticipate the various changes and be prepared to take advantage of them or mitigate the effects.
  • Know your client’s specific issues in a divorce case. For alimony, research the educational and work history of each of the parties. Establish the length of marriage and the standard of living, because that will impact the evaluation of the alimony claim. For property division, research how the parties lived, the nature of the marital estate, debts, employment of either/both parties, and tax consequences of any type of estate distribution. The answers to these questions will impact how the court will analyze the estate and financial status of both parties and the division of the estate and award of alimony.

Understanding the Legal Issues Surrounding Same-Sex Marriage, 2013 ed.

This article is an excerpt from Understanding the Legal Issues Surrounding Same-Sex Marriage, 2013 ed. This excerpt was provided by Aspatore Law Books, part of Thomson Reuters. Aspatore books were originally created for a legal professional audience, but have since become popular with non-attorneys thanks to easy-to-understand writing and smart, real-world insights. You can find the entire book available for purchase on the Thomson Reuters Legal Solutions website by clicking the book title linked above.