DOMA The Defense of Marriage Act And The Right For Same Sex Couples To Marry


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Jul 19, 2022

DOMA: the Defense of Marriage Act, was passed by the United States Congress and Senate and made law with the intention to “protect the institution of marriage”.  Protected it from what is the real question!  This law was devised by those who intended to specifically define marriage as only between a cisgender heterosexual man and cisgender heterosexual woman.  It’s purpose is to reserve the protections of marriage to that single class of couples.

The effect of the law permitted individual states to discriminate and prohibit same sex marriages within their state.  It also gave states the power and right to refuse to recognize same sex marriages from other states in which same sex marriage was legalized, recognized and permitted.  This severely undermines a longstanding legal principle that all Judgments and Orders from other states must be recognized by any other state in the union and most be given “Full Faith And Credit” in other word full force and effect.  

DOMA was determined to be unconstitutional initially by the Supreme Court case of United States v Winsor in 2013. The rights of same sex couples and the extinguishment of much of DOMA was determined in 2015 by the Supreme Court case of Obergefell v Hodges which ultimately determined the rights of same sex couples to legally marry throughout the 50 states. 

The fall of DOMA permitted same sex couples to nationally have the benefits that come with legalized marriage, however, it did not retroactively protect couples that may have been “domestic partners” or living together for years and even decades prior to being able to legally get married.  

So, what does this really mean and look like?  In most states, as in New York, in a divorce, valuation of marital and separate property of a couple is determined from the date that they were legally married to the date that they commence a divorce action. 

What is the impact and what does that mean?  Well, if a couple for example has been together 30 years, prior to being able to legally marry and planned their financial futures accordingly; either deciding to pool retirement or utilizing one partner’s benefits to establish a more secure financial future for both parties at the time of retirement; this planning would be disregarded by the court system.  The court is only permitted to look at assets that existed at the time of the legal marriage and valued as of the date of the commencement of a divorce action.  So, in our example if a couple had in their financial planning decided to put more money in one party’s retirement, with the intention that they would both benefit from it in the future.  At the time of the divorce, that asset would only be considered the property of one party until such time as the date of the legal marriage.  So, all the planning and all the monies that were put aside prior to the date of the legal marriage would NOT be considered marital property by the court and the party who had contributed to the other person’s pension or retirement asset, as a way to plan for the future, would be denied those monies and benefits.  

A spouse has no right to retirement assets acquired or complied prior to the date of the legal  marriage.  Therefore, no matter what careful planning a couple may have chosen for their future, the court will not recognize this planning or the parties’ intensions.  The Court will only recognize assets titled (or in the name of the party) at the date of the marriage.  Therefore, investments of 30 years for a joint future will be totally disregarded.  For instance, if a couple chose to invest in one person’s retirement, rather than each person’s retirement, knowing that they would both benefit, their plan will be totally disregarded and the person that has no retirement, but was choosing to utilized resources to build a partner/spouse’s retirement could be left with nothing.

Article/blog post courtesy of Concetta Spirio

Concetta Spirio.  A Compassionate Collaborative Divorce Attorney, Mediator & Peacemaker Providing The Highest Level of Legal Representation For Over 35 Years.

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