On June 1, Illinois was added to a list of more than a dozen states that now recognize same-sex marriage. Of course, with the freedom to marry also comes the need to end a marriage in divorce.
Under the state’s same-sex marriage law, a same-sex divorce is treated largely the same as an opposite sex divorce, including issues relating to child custody, spousal support and property distribution (more on that later).
In addition to allowing same-sex couples the freedom to marry and divorce in the state, Illinois’ same-sex marriage law also means that federal benefits are extended to the state’s same-sex married couples.
Last summer, the U.S. Supreme Court repealed the Defense of Marriage Act (DOMA), which limited marriage to one man and one woman under federal law.
After DOMA was deemed unconditional, federal marriage benefits such as Social Secuirty benefits, veterans benefits, federal employee benefits, immigration benefits and tax benefits were extended to same-sex couples who were married in states that recognize it.
At the same time the Supreme Court repealed DOMA, it also issued an important decision in the United States v. Windsor case. In that decision, the Supreme Court held that married same-sex spouses must be able to transfer property on a tax-free basis upon death or divorce like opposite-sex spouses can.
Ultimately, the DOMA repeal and Windsor decision now allow same-sex spouses to transfer property to one another without paying federal income or gift taxes. This is extremely important during the property division portion of a divorce and saves a same-sex couple from potentially enduring tough tax penalties.
Even with all of the new benefits that have been afforded to same-sex couples, there are still a few unique issues that must be considered during same-sex divorce.
One example is that a gay couple may have been together for decades before tying the knot, but when considering property division and spousal maintenance, only the married years are taken into account.
Because this is a complex and ever-changing area of law, it’s extremely important to work with a family law attorney with experience handling same-sex family law issues.
Source: Main St, “Same-Sex Marriage Finds More Inequality in Divorce: Pain in Progress,” Amy Xie, July 8, 2014
