In 1975, Paul Simon crooned, “[t]here must be fifty ways to leave your lover.” But in 2013, some married same-sex couples are having trouble finding any way to leave their partners. A recent New York Magazine cover story recounts the story of Kevin and Sam, a couple that dated for seven years before tying the knot in Massachusetts in 2004. In 2012, they separated and were granted a divorce in 2013. Kevin and Sam’s story, however, cautions that many same-sex couples encounter substantial difficulties when the relationship ends with a decision to separate and divorce.
The problems facing same-sex couples arise for two main reasons. First, there are widely disparate laws governing same-sex relationships among our States. Depending on a same-sex couple’s physical location, his or her relationship may be recognized as a married couple, Civil Union or no legal recognition at all. The second complication is that Federal Government, pursuant to the Defense of Marriage Act (“DOMA”), treats taxes, pensions, inheritance, and other transfers differently for same-sex couples. Thus, even if a same sex couple is legally married in a State that recognizes gay marriage – Federal law may not provide that couple with the same rights and protection of a “traditional” marriage.
Is help on the way? In 2013 our United States Supreme Court will decide two cases challenging State and Federal Laws defining marriage to include only unions between a man and a woman. The first case is from California, Hollingsworth v. Perry, No. 12-144, and the issue is whether California laws banning same-sex marriage is a violation of the United States Constitution. The second case, United States v. Windsor, No. 12-307, challenges DOMA’s definition of marriage as between only a man and a woman for over 1,000 Federal laws and programs. Both of these cases will be monitored closely by same-sex couples, the legal community and media.
Joe Russell is a Senior Associate at Wilentz, Goldman & Spitzer, a R. 1:40 Qualified Mediator and has been selected for inclusion in New Jersey Super Lawyers®–Rising Stars Edition (2010), (2011), (2012) and (2013). Joe maintains an office in Wilentz’s Woodbridge and Eatontown locations though he regularly practices throughout New Jersey including Ocean, Monmouth, Middlesex, Somerset, Union, Essex and Morris County. You can reach Joe at (732)726-6236, or firstname.lastname@example.org.