At Skylark Law & Mediation, P.C. we believe that justice and the law should be blind to race, religion, gender, creed, and sexual orientation. Unfortunately, due to discriminatory laws same-sex and LGBT couples are not treated equally in many circumstances. Even in the Commonwealth of Massachusetts, where same-sex marriage has been established law for more than ten years, the discriminatory laws and practices of other state governments can cause legal problems for these couples. In addition, because gay and lesbian marriage is a relatively new right in the Commonwealth, we are still learning how the laws of divorce and separation will be applied to these marriages. This site is dedicated to providing information about these issues and the progress towards truly equal rights.
Read the information below to learn more about divorce in Massachusetts and how same-sex divorce is different from opposite-sex divorce even in Massachusetts.
Click here to use our gender-neutral parenting plan worksheet.
In many ways divorce law in Massachusetts treats same-sex marriages and opposite-sex marriages the same. For that reason we encourage you to review our general divorce information pages as well:
If you are a member of the LGBT community, it is also important for you to be aware of the few ways in which these cases will differ from opposite-sex cases. If you are facing a same-sex divorce, failing to recognize these differences or hiring professionals that are not aware of these differences could result in significantly worse results in your case. Below we have provided just some of the ways that these cases can differ from opposite-sex divorce cases.
In addition, because of the differences between opposite-sex and same-sex divorces in court, out of court settlement can often better address the unique facts of each case. Collaborative Divorce and Mediation can be helpful in addressing these complicated issues without the risks and cost of court but by still involving experienced professionals in the case.
On June 26, 2013, the Supreme Court of the United States declared in United States v. Windsor, that section 3 of DOMA (the “defense of marriage act”) is unconstitutional. Previously this section prevented federal agencies from treating same-sex marriages as marriages for benefits and tax purposes. This means that many federal spousal benefits (such as spousal benefits for federal workers) were not be available to same-sex spouses.
Additionally, for Federal tax returns, same-sex married couples could not file under married status. The ruling in Winsdor changed all this and for federal purposes marriages valid in Massachusetts are now also recognized by the federal government. Section 2 of DOMA, however, was not addressed in the Windsor decision, but was addressed in the later decision: Obergefell v. Hodges.
In Obergefell, SCOTUS decided (in a 5-4 ruling) found Section 2 of DOMA unconstitutional. The Court ruled that marriage is a fundamental right under 14th amendment due process and extends to same-sex couples because there is no rationale to deny benefits based on the societal reasons for promoting marriage. This was not based on a typical equal protection analysis, but rather focused on the nature of marriage and why it’s important in today’s society and therefore represents an inalienable liberty.
Essentially, this means that a same-sex marriage is currently recognized in every state in the United States, regardless of where it took place. This doesn’t guarantee the same treatment for LGBT family members, but is a step in the right direction. This progress in the U.S. also doesn’t guarantee that all other countries will recognize a same-sex marriage.
There are potential differences in how alimony may be calculated in a same-sex divorce case. The factors may not be applied the same way in a same-sex divorce case because same-sex marriage has only been available as a right since 2004. For example, the “length of marriage” factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.
LENGTH OF THE MARRIAGE:
M.G.L. c. 208 Section 34 lists the factors that the court must consider when determining the division of property, and one of those factors is “length of the marriage.” The “length of marriage” factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.
ENFORCEMENT OF ORDERS OUT-OF-STATE:
A few states that are not as friendly to the LGBT community, may refuse to enforce or interpret divorce orders differently, especially as they relate to children. While federal law now requires equal protection, the best interest of a child standard is very subjective and other states could obtain jurisdiction over custody and parenting plan orders if a child lived there for six months or more.
In addition, while Massachusetts recognizes a same sex married parent as a legal parent, other states may not without a formal adoption. Until this law is settled nationwide, in many cases it is advisable for same sex parents to also obtain an adoption for a child if they are not the biological parent. It is important to give very careful thought to provisions around custody and parenting plans in agreements for divorce between LGBT individuals for these reasons.
In fact, even in Massachusetts, there are often forms and worksheets that assume that two parents are mom and dad. The court has made efforts to update their forms to be gender-neutral in most cases, and we have done the same at Skylark: click here to use our gender-neutral parenting plan worksheet.
Equality on same sex marriage requires equality on same sex divorce. Read our posts summarizing the landmark Supreme Court rulings relating to same-sex marriage:
SCOTUS rules on Marriage Equality: the tl;dr version – Obergefell v. Hodges
DOMA No More, SCOTUS finds Section 3 Unconstitutional – United States v. Windsor
SCOTUS avoids 14th Amendment analysis on Prop 8 through Standing Analysis, Still a Win? – Hollingsworth v. Perry