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Dealing with Alternative Lifestyles in Marriage – LGBT and the Law

Posted On: August 14, 2014
Dealing with Alternative Lifestyles in
Marriage – LGBT and the Law.

In June of 2013, the US Supreme Court issued its decision in the case of the United States vs. Windsor, eliminating from the legal definition of marriage the phrase, “union between a man and a woman.” This ruling meant the widow in the case would not be required to pay $350,000 in federal taxes when her same-sex spouse died because the couple’s marriage was not considered legal in the United States.

The result of the ruling changed how the federal government views same-sex marriages and how laws affect these relationships.

What are some of the most notable aspects of LGBT marriages and the law?

The IRS Now Recognizes All Marriages
No matter whether a couple lives in a state with legalized same sex marriage or not, the IRS recognizes all marriages. The IRS now uses the location in which the marriage was legalized, as opposed to the state in which the tax filers live to determine whether or not a couple can file as married spouses. As long as a couple marries in a jurisdiction that recognizes same-sex marriage, they qualify for federal tax benefits.

The Federal Benefits Now Afforded To Same-Sex Spouses MAY NOT Apply In All States
Despite the federal government recognition of same-sex marriages, the Social Security Administration requires same-sex couples to live in states in which their marriage is legal in order to obtain SS benefits. Spouses living in non-recognition states are not eligible for social security benefits based on their spouse’s work record and will also not be eligible for Medicaid and Supplemental Security Income, Medicare, Family Medical Leave, or Bankruptcy filings.

This does not mean same-sex couples are not entitled to these benefits at all; it simply means they must reside in a state that recognizes their marriage as legal.

Similarly, employment benefits available with a National Corporation may not be the same in states wherein Same Sex Marriages are not recognized.

Additionally, parental rights of a non-biological parent who has not proceeded with a Second Parent adoption may not be recognized in states that do not recognize same sex marriages.

What Happens if the Marriage Ends?
A 2010 analysis comparing divorce rates in states in which same-sex marriage was legal showed a statistically significant relationship between the state laws governing marriage and the decrease in incidence of divorce. There is debate over the various causes for the decrease, but despite there being less risk for divorce, it unfortunately still occurs across heterosexual and same-sex marriage.

Divorce rights for spouses vary from state to state. Further complicating matters, some same-sex couples registered in more than one location to enter into a civil union and/or to marry. Same-sex couples must make sure they end all registrations no matter their location and regardless whether the law changed from the time of registration.

Legally, the situation can become extremely complicated. You might also have more than one option when it comes to ending a same-sex marriage, so it is important to talk to a divorce attorney familiar with the laws in each state, as well as federally.

Some states require that dissolution of the union created in their state occur within their state. This also may require a term of residency in the state where the union was created as a prerequisite to the dissolution within the state.

Finally, keep in mind laws regarding same-sex marriage continue to change rapidly. Before registering to marry, marrying, or deciding to end a same-sex marriage, it is important to understand the various implications, so you know your rights and you can make sure you and your spouse are within the letter of the law.

If you need help in this area or have questions feel free contact attorney SPIRIO at 631-277-8844