California will soon see its first gay divorce. One of the first lesbian couples married under California’s “Marriage Cases” has filed for dissolution, according to the Fresno Bee. Family law attorneys in general have been curious to see how gay dissolution will proceed. We at Bremer Whyte Brown &O’Meara have been educating ourselves on possible issues these spouses will face during the process.
Most of the issues surround jurisdiction. Many states will not honor gay divorce, and if a couple is married in California but later establishes residency in another state that does not honor gay marriage, they likely will be unable to divorce. Their only option would be for one spouse to return to California or another state that recognizes gay marriage, re-establish residency, and then file for divorce there. This would be costly and time consuming; however, the law does not presently provide for another option.
Currently, Federal tax laws and other regulations may be incompatible with gay divorce. For example, upon dissolution, the spouses must divide their assets. In a traditional divorce, the parties can complete inter-spousal transfer deeds without incurring capital gains. The federal tax laws do not recognize this type of transfer between gay spouses, and therefore they may incur significant capital gains. In addition, there is the problem of spousal support. For heterosexual couples, the expense is deductible by the payor. This is not true for gay couples, according to the American Bar Association.
The solutions to these issues will vary depending on each case. Some such solutions involve overpayment of child support as an equalization payment for other items. Another solution might be innovative trust or Marital Settlement Agreement provisions. Over time, these creative solutions will develop into new functions every family lawyer in California must know while the law of the nation evolves.