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The good news is New York has joined the few states that allow gay marriages. Gay and lesbian couples from all over the country are flocking to the Empire State to “tie the knot” in wedded matrimony.
The bad news is that when marriages fail, and gay and lesbian couples seek a divorce, several states do not allow them to obtain divorces or annulments.
Most states and the federal government do not recognize gay marriages. Many same-sex couples are left without a remedy when they seek to end their relationships.
Let’s say an out-of-state couple goes to Massachusetts to marry. They cannot return to obtain a judgment of divorce unless they are residents of the Bay State for at least one full year. If their home state does not recognize gay marriages, they cannot obtain a divorce there either. The couple is “trapped.” They are without remedy. “Stuck” is the operative word.
By being unable to divorce, neither party can remarry should that opportunity present itself again. And the division of property and support cannot be judicially determined. Some same-sex couples have sought out gay-friendly judges to preside over their divorces. Unfortunately these “judgments” are not enforceable. Therefore, the couple remains married.
California allowed same-sex marriages for a very short time. With Proposition 8, the voters struck down the rights approved by the legislature. Couples who took advantage of their rights during the window of opportunity have the ability to terminate their union but only if they fall into this limited time period.
It is amazing how many long-term couples who have waited years, if not decades, to legally marry and soon after the ceremony, sought to be divorced. Perhaps the fear of commitment was overwhelming.
Since California is a “community property state,” spousal support and the division of after acquired assets are appropriate for judicial review.
However, pension benefits and 401(k) plans are not under the same blanket. Most of these are regulated under the federal Employee Retirement Income Security Act (ERISA). As a federal agency, the division cannot be had. So too the IRS disallows filing a joint tax return. The state taxing authority takes a different view and will accept a joint filing.
As of today, there are more questions than answers when it comes to the divorce of married same-sex couples. Eventually things will be worked out. However that day has yet to arrive.
Richard Gordon is the principal mediator at A Fair Way Mediation Center of San Diego. Contact Gordon via Facebook or Twitter. Also, A Fair Way Mediation Center will look to our readers to propose future topics.