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DISPARATE TREATMENT OF SAME-SEX RELATIONSHIPS AMONGST STATES AND THE FEDERAL GOVERNMENT COMPLICATE THE DIVORCE PROCESS FOR SOME COUPLES

Equality.jpgOn March 26, the Supreme Court heard arguments regarding the constitutionality of California’s Proposition 8. The following day, the Supreme Court heard arguments addressing the constitutionality of the Defense of Marriage Act (DOMA), a federal law defining marriage as between opposite sexes.

Proposition 8, which was passed in the November 2008 California elections, amended the California’s Constitution to specify that the State only recognized marriages between a man and woman as valid.

When Proposition 8 was passed in 2008, it resulted in the overturning of a ruling by the California Supreme Court, which found that same-sex couples had the constitutional right to get married. While Proposition 8 banned same-sex marriages going forward, a subsequent court ruling allowed same-sex marriages performed before November 5, 2008 to remain valid.

After its passage, Proposition 8 faced numerous legal challenges. In August of 2010, the United States District Court for California held that Proposition 8 was unconstitutional because it violated the Due Process and Equal Protection Clauses of the United States Constitution. In February of 2012, this decision was affirmed by the Ninth Circuit Court of Appeals. Proponents of Proposition 8 filed a petition for certiorari with the United States Supreme Court, requesting the country’s highest court to rule on the matter. This petition was granted in December of 2012.

The Court heard oral arguments in this case on March 26 and is slated to issue a ruling by July of 2013. During oral arguments, Justice Anthony Kennedy stated that banning same-sex marriage posed an immediate harm to those same-sex couples. He also mentioned that the effects of the ban on the children of same-sex couples should be considered.

Same-sex divorces are rising

Historically, same-sex marriages have had higher rates of success than marriages involving different-sex partners. However, according to a recent New York Magazine article, studies show that the same-sex couples are experiencing a divorce boom, with rates approaching those of their different-sex counterparts.

The process for securing a same-sex divorce can be confusing

Just as the laws surrounding same-sex marriage are in flux, so are the laws surrounding same-sex divorce. Same-sex divorces are complicated because of the differences amongst states and between states and the federal government regarding the legal status of same-sex relationships. The ability to secure a divorce is critical because it has implications on end of life decisions, inheritance, and child custody.

Many states, including California during its same-sex marriage window, do not impose residency requirements for getting married within the state. However, those same states have residency requirements for filing a divorce. This poses huge burdens on couples that reside in other states where same-sex marriages and divorces are not recognized, and who cannot afford to move and establish residency where they married in order to file for divorce.

Furthermore, states and the federal government differ in their treatment of taxes, pensions, and inheritance of same-sex couples. This makes the distribution of assets at the end of a marriage difficult.

Securing a same-sex divorce can be complicated, but a family law attorney can help navigate you through it.

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