Facing Divorce? See what steps you can take to protect what's yours.
Divorce Home » Divorce News » Articles » Headlines

Marriage Does Not Level Playing Field for Gay Couples


Thousands of gay couples are now married or planning marriages in California, where gay marriages recently became legal. However, an interesting article by the Mercury News points out that legalized gay marriage in California will not ensure equal rights for same-sex couples.

Under state law, gay couples who marry in Massachusetts and California are generally afforded the same legal rights as any married couple, but when it comes to federal law things can be more complicated. Same-sex marriages are not recognized under federal law and therefore in cases governed by federal and not state law, gay couples do not have the same rights as other married couples.

If a gay couple who are married in California or Massachusetts end up in bankruptcy court, own an out-of-state vacation home or need to take a leave of absence from work due to the death or illness of a spouse, federal law comes into play and things could get tricky as under federal law, same-sex couples are not legally married.

Gay couples who are married will not be eligible for federal tax breaks that other married couples get. Tax codes favor families and marriage but same-sex couples are not allowed to file joint federal tax returns. In fact, taxes for same-sex married couples can become a complex issue because of the fact that in the states that allow same-sex marriages, the state tax returns can be filed jointly. In order to complete a state tax return, information from the federal tax return must be used. In the case of same-sex couples who are married, this means that they must complete a federal tax return as a married couple, but that the tax return can not be filed. It is simply completed in order to determine the necessary information for the state tax return and then discarded, and the spouses each file separate federal tax returns.

In addition to the restrictions of federal law on same-sex married couples, the fact that gay marriages are not legal in every state can also pose a problem. In cases in which same-sex couples wish to divorce, it can be problematic if they no longer live in a state that has lifted the ban on gay marriages.

New York has recently decided to accept the fact that gay couples can be married and recognize same-sex marriages performed in other states. However, most states do not recognize the marriages of gay couples and therefore the family courts can not grant a same-sex divorce.

In order to divorce, most states, including California, have residency requirements although there are no residency requirements to get married. California requires that a person live in the state for six months prior to filing for divorce and in the same county that the divorce is filed in for three months. This means that same-sex couples who cross state lines in order to be legally married could have a problem getting a divorce without moving and establishing residency in a state that recognizes gay marriage.

When a spouse in a same-sex marriage dies, the surviving spouse can inherit the property without paying inheritance taxes. However, if the couple lives or travels out of state or owns property in a state that does not recognize same sex marriage, a will or living trust can prevent legal fights after the death of a spouse. Because Social Security benefits are a matter of federal law, the surviving spouse will not be eligible to receive Social Security benefits after the death of a spouse.

Because only marriages between a man and a woman are recognized under federal law, a spouse in a same-sex marriage can not apply for U.S. citizenship based on the marriage. A spouse can not sponsor a same-sex partner for legalized immigration status.

Filing bankruptcy can also be problematic and complicated for same-sex couples. Under federal law, couples who file bankruptcy may retain enough assets to support both people. Same-sex couples will not be able to file bankruptcy as a couple, however where state law steps in, a same-sex married couple is legally responsible for each other's debts. So when a person in a same-sex marriage files bankruptcy in California, under state law, a spouse's assets could be seized to pay the other's debts.

Other matters such as family leave, health insurance and medical emergencies can be complex issues in gay marriage as well and the list goes on. As long as federal law does not recognize gay marriage and some states do, there will continue to be major conflicts between federal and state law. For the time being though, same-sex couples in California don't seem to mind the hassles and gay couples are showing up in droves to apply for marriage licenses.

» Back to Divorce Articles