Today I led a workshop for the Family & Divorce Mediation Council (of Greater NY) with fellow Board members Teresa Calabrese, Katie Cole and Mark Josephson on what the new law permitting same-sex marriage means in NY. On one hand, it is a huge victory and an important step in creating civil rights for LGBT couples. On the other hand, it is a legal tangle.
As of this writing, only 6 states (plus DC) issue marriage licenses to same sex couples. About 13 others have some kind of recognition, either civil unions or domestic partnerships. But the federal government, and many states (either by legislation or constitutional amendments) explicitly forbid the recognition of same sex marriage.
As stated in the last post, DOMA (the Defense of Marriage Act), does 2 things:
1) it prevents legally married same-sex couples from taking advantage of ANY federal benefits (so they can’t file federal tax returns together, can’t get Social Security or VA benefits from their spouses, etc), and
2) it explicitly allows states to refuse to honor same-sex marriages performed in other states.
So let’s say you have a married lesbian couple. They have to file taxes as “married” in NY, but cannot file taxes as “married” on their federal returns. If one works for the federal govt, the other can’t get health benefits. If they get divorced and one is paying alimony, she can’t deduct it on her income tax returns. In fact, she may have to pay gift tax! If she pays child support to a non-biological child, that may be considered a gift, as well, and she may not be able to claim that child as a deduction on her tax returns.
All of this is to say that while the passage of the law IS monumental, it is, at least until DOMA gets repealed, a logistical nightmare.
All the more reason to use mediation or collaborative process, both for pre-nups and divorces — both processes can focus on creative ways to address the needs of the parties and their children.