Washington state is the latest among several states that now recognize same-sex marriage, and family courts here will need to address the question of same-sex divorce. Same-sex marriages that have ended in divorce in other states are bringing to light complicated issues regarding the interaction of the federal Defense of Marriage Act and state law.
The law, DOMA, provides federal tax deductions for spousal and child support paid after a heterosexual couple divorces. In same-sex divorces, no such deductions are available.
This is because DOMA defines marriage as between one man and one woman, and thus, at the federal level, the word "spouse" cannot refer to a same-sex married individual. Since the Internal Revenue Service is governed by federal law, the agency is bound against recognizing spousal and child support in same-sex divorces as deductible.
In California, family court judges in same-sex divorces have been compensating for this discrepancy by awarding smaller amounts of spousal and child support, to avoid negative tax consequences for either the payer or the payee. However, in highly contentious divorces, it is possible for a court to accidentally overlook tax issues when the judge is charged with resolving many other issues at the same time.
Some have said that until these federal-state conflicts are resolved regarding same-sex marriage, it is much better for all parties in same-sex divorces to pursue as amicable an arrangement as possible.
Same-sex couples who divorce need to be aware from the beginning of the process that just because divorces are handled by state courts, the financial organization of a couple's assets is governed, at least in part, by federal law. If divorcing couples can cooperate regarding the organization of their finances, they can likely avoid a hefty tax penalty, and thus have more money available to support the new family units.
An experienced family law attorney can assist with determining the best course of action for divorcing same-sex couples.
Source: Bay Area Reporter, "DOMA complicates gay divorces," Matthew S. Bajko, Feb. 16, 2012