Same Sex Divorce
In 2015, the United States Supreme Court issued a landmark decision in Obergefell v. Hodges holding that same-sex couples have a constitutional right to marry in all states and have their marriage recognized by other states. This decision was particularly important as Florida’s Constitution and two state laws defined marriage as being between a man and a woman. Same-sex couples are now afforded many of the same rights that were previously reserved for traditional marriages.
Social Security Benefits
The Social Security Administration now recognizes same-sex couples’ marriages in all states and same-sex marriages and some non-marital legal relationships established in foreign jurisdictions for purposes of determining entitlement to Social Security benefits, Medicare entitlement, and eligibility and payment amount for Supplemental Security Income (SSI).
Income Tax Filing
Since 2013, the Federal Government has recognized same-sex marriages for tax purposes. Whether you are married, separated, or seeking divorce, there are certainly tax implication that need to be addressed. If you haven’t been filing your taxes together, it may be advantageous to do so and retroactively amend your returns to reflect your marriage for past years.
Since 2016, married same-sex couples in Florida may now list both parents’ names on birth certificates and not just the names of the biological parents. Florida’s Department of Health Office of Vital Statistics also allows amended birth certificates to same-sex couples who previously had a child during their marriage. While an accurate birth certificate is an important step for families, same-sex parents should still consider a confirmatory adoption (such as Step Parent Adoption) to ensure the rights of the parents throughout the United States.
Domestic Partnership Agreements
Same-sex couples contemplating marriage, or those in committed relationships, should meet with one of our experienced attorneys to discuss entering into a domestic partnership agreement. An agreement can secure the rights of parents and address the couple’s finances, property, and healthcare rights.While same sex-couples are now afforded many of the same rights as it pertains to alimony, property,and finances by virtue of their marriage, laws surrounding children and the protections afforded to each parent are still not clear. As such, it is easier to address issues surrounding timesharing and children early.
While tremendous strides have been made legally for the gay community in terms of benefits for same-sex married couples, when it comes to same-sex divorces, the law is not as clear. Same-sex couples face many of the same obstacles and heartbreak other couples face when a marriage fails. However, same-sex couples are confronted with unique challenges as it relates to the dissolution of their marriage.These challenges can be overcome with planning, and the help of our experienced attorneys.Some of these unique challenges include custody of children that are adopted into a same-sex marriage or children conceived through artificial insemination. Particularly problematic are issues surrounding custody in which one parent is the biological parent, as there is no automatic presumption that both partners in a same-sex couple are legal parents. While courts will generally consider what is in the best interest of the child, the Court may deny timesharing rights to a parent who is not the legal parent of the child.
At the Men’s Divorce Law Firm we are experienced in handling issues surrounding same-sex divorce, and we would be happy to discuss your case with you. Contact us today to schedule an initial consultation.
Frequently Asked Questions About Same-Sex Divorce
When are individuals of the same sex lawfully married for federal tax purposes?
For federal tax purposes, the IRS looks to state or foreign law to determine whether individuals are married. The IRS has a general rule recognizing a marriage of same-sex spouses that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages.
Can same-sex spouses file federal tax returns using a married filing jointly or married filing separately status?
Yes. For tax year 2013 and going forward, same-sex spouses generally must file using a married filing separately or jointly filing status. For tax year 2012 and all prior years, same-sex spouses who file an original tax return on or after Sept. 16, 2013 (the effective date of Rev. Rul. 2013-17), generally must file using a married filing separately or jointly filing status. For tax year 2012, same-sex spouses who filed their tax return before Sept. 16, 2013, may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status. For tax years 2011 and earlier, same-sex spouses who filed their tax returns timely may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status provided the period of limitations for amending the return has not expired. A taxpayer generally may file a claim for refund for three years from the date the return was filed or two years from the date the tax was paid, whichever is later. For information on filing an amended return, go to Tax Topic 308, Amended Returns, at /taxtopics/tc308.html.
Can a taxpayer and his or her same-sex spouse file a joint return if they were married in a state that recognizes same-sex marriages but they live in a state that does not recognize their marriage?
Yes. For federal tax purposes, the IRS has a general rule recognizing a marriage of same-sex individuals that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages. The rules for using a married filing jointly or married filing separately status described in Q&A #2 apply to these married individuals.
Can a taxpayer’s same-sex spouse be a dependent of the taxpayer?
No. A taxpayer’s spouse cannot be a dependent of the taxpayer.