Knowledge Base

Same Sex Divorces:
The Law Is NOT Equal 


February 1, 2011
Written by Lynne C. Halem

It seemed to Jane as if she and Alice had been a couple forever, if forever can be defined by twenty years of living together, raising children, and being each other’s best friend.  They married in August 2004, celebrating with family and friends Massachusetts’s recognition of same sex marriage.  Yet, somehow, for reasons Jane could not quite pinpoint, lately life began to unravel.  She and Alice had drifted apart.  Each day, new tensions arose; conversations became strained; something was wrong, terribly wrong.  And so, what in 2004 began as a celebration of Jane’s and Alice’s relationship and commitment to each other, in 2011 became a divorce event.

After discussion with friends and counselors, Jane and Alice agreed that no one, least of all the children, would benefit from a legal battle.  Mediation seemed the process of choice.  With this first decision settled, Jane and Alice entered into mediation. 

New hurdles emerged, not of their making.  Unfortunately, same sex divorces are not governed by the advantageous tax laws that apply to heterosexual divorces.  As such:

  1. Alimony or spousal support, which is deductible in heterosexual divorces to the payor and taxable to the recipient, does not apply to same sex divorces.
  2. Tax-free property transfers, including retirement funds, are available in heterosexual divorces, but not in same sex divorces. 

These and other limitations suggest that divorcing same sex couples have to “think out-of-the-box.”

For example, in lieu of alimony, child support may be increased and/or made on behalf of another party and/or the couple may try to capitalize on tax advantages of gifting moneys.

Division of retirement funds becomes particularly troublesome, especially in long-term relationships where the parties agree that they have been a couple economically and emotionally before the marriage.  Here, the Qualified Domestic Relations Order is not available for the tax-free transfer of retirement funds from one party to another.  As a result, the couple needs to look for alternatives that will not have a negative tax effect.  The “transferring” partner may withdraw funds, without penalty, to finance the other partner’s share of the children’s education, thereby using the funds to eliminate a liability.  Alternatively, at age 59½, the transferring partner may withdraw funds and apportion them to the other party, mindful of structuring allocations to capitalize on gifting allowances and advantages.

Jane and Alice were not surprised that their divorce, as their relationship, was governed by different rules.  They had struggled for years with restrictions and limitations that their straight friends did not face.  With the help of a skillful mediator, they approached each restriction as an invitation to think creatively.  Their focus, first and foremost, was on parenting their children and maintaining the children’s standard of living.  It was, in fact, this child-centered approach, that opened a channel for the allocation of moneys, as well as collaborative parenting that helped to resolve financial limitations imposed by restrictive laws.

Communication skills learned in mediation helped Jane and Alice to rediscover their friendship.  Although with sadness for the loss of their life as partners, they were able to face a future in which they, as parents and as friends, would be there for the children and for each other.

See the New York Magazine Article, "Divorce Equality, When Gay Marriage Ends" by Jesse Greene 


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