Massachusetts Divorce Law Monitor : Massachusetts Divorce Lawyer & Attorney : Nancy Van Tine : Burns & Levinson Law Firm : MA Divorce & Family Law : Massachusetts Divorce Law Monitor

Hi there,

I was sorry to see that Tuesday the Maine voters rejected single sex marriage.

In Massachusetts, however,  the Appeals Court  in what is known as a "slip opinion" (a slip opinion does not have the dis-positive force of law, but can be utilized as part of a court argument or brief), has extended the time concept of the length of a single sex marriage backwards from the date of marriage to the date of the couples' commitment ceremony.  This means that gay couples may be considered to have been married longer than in fact they were.  This is not the first time Massachusetts has made this determination (again in a slip opinion).  This potentially has huge significance for divorcing single sex couples.

There is however a Supreme Judicial Court decision, and in Massachusetts, SJC decisions always trump Appeals Court decisions.  The SJC held that in a personal injury matter, the length of the marriage was ONLY that time in which the parties were indeed married.

This has the effect of muddying the already murky water of single sex divorce in Massachusetts a little bit more.

Best,

Nancy

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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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Hi There,

I was reading the other blogs listed on the side mine and there was this very interesting post on the New Hampshire Family Law Blog.  It goes to show how complex the question of gay marriage and divorce really is.

Then my partner, Peter Zupcofska, was interviewed and did a great job setting out the legal differences and how to potentially handle them.

Best,

Nancy

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