Lawsuit Against the Federal Defense of Marriage Act

Posted on July 9, 2009 by Nancy Van Tine

Hi there,

Since we learned yesterday that Massachusetts Attorney General Martha Coakley is filing a law suit against the federal Defense of Marriage Act (DOMA), speculations have been flying about what this means and what will happen. The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" as "a legal union between one man and one woman as husband and wife."

Why?
We just celebrated the 5 year anniversary of allowing same-sex marriage in Massachusetts. Since then, at least 4 other states (Maine, Vermont, Connecticut and Iowa) have legalized gay marriage. Even though gay marriage is recognized in these states, it is still not recognized at the federal level.  This causes problems on many levels – taxes and adoption of children to name just two. According to the Boston Globe, “The suit filed in US District Court in Boston claims that the Congress, in enacting the DOMA, ‘overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.’”

Issues
Gay and lesbian married couples struggle with very different tax treatment as the federal government, the main taxing authority, doesn't recognize gay marriage due to DOMA.
Due to the current regulations under DOMA, we have to approach gay divorce with a very different analysis then divorce between a straight couple both because of the very complex tax implications and the issue of what is the actual length of the marriage (one of the critical factors in setting support and dividing property).

So I am delighted to see that Attorney General Coakley has done this.  It will be fascinating to see what happens,

Best,

Nancy

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No Prenuptial? Ouch!

Posted on April 24, 2009 by Nancy Van Tine

Hi there,

I keep getting sidetracked from the 10 Steps In The Divorce Process by breaking news stories and I have to admit this one (Mel Gibson's divorce) is a bit tacky!

Admittedly when Mel Gibson married he could have had no idea as to how phenomenally successful he was going to be. He also, given his very public religious convictions, probably did not anticipate a divorce, but still...

Most states, including Massachusetts, recognize the validity of prenuptial agreements.  Mr Gibson hails from Australia, so perhaps at the time he married it was not an option; but here and now if there are, or may be, considerable assets, a prenup is a good thing. Prenups are important to consider if you or your spouse is marrying for the second time and there are children of the first marriage; if there is an inheritance expected in the future; if one party or the other has an interest in a family business. Prenups cannot decide anything regarding children but pretty much everything else can be dealt with.  

I do have a warning, or perhaps caution is a better word, prenups do require partners to talk about finances but the process can be extremely fraught. Here you are planning a wedding AND deciding who gets the wedding presents when you divorce.  I am not personally in favor of prenups for ordinary people, like me, for that reason.

However, if you are planning to be Mel Gibson; or you have wealthy parents, children from a prior marriage, or considerable wealth already and you are thinking of getting married...consider a prenup. In Massachusetts, with both sides having separate, competent counsel, absent fraud and with full disclosure, they are pretty much bullet proof.

Best,

Nancy

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