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Some legal "glitches" on same-sex marriage ...

Along with a local attorney, I've been doing a lot of presentations on the tax and legal aspects of same-sex marriage. Here are some recent revelations which may be of interest to you here:

1. DIVORCE. If a heterosexual couple wants to get divorced, they can file in their home state, regardless of where their marriage took place. But what do you do if your state of residence doesn't recognize the marriage as valid?

Answer: You generally have to file for divorce in the state where you got married. Problem: Except for CA, DE, MN and the District of Columbia, the other states that now recognize same-sex marriages (and will marry non-residents) won't grant a divorce except to RESIDENTS of that state. In some cases (such as MA), you may have to live there for at least a year, before you can file!

2. NEW MEXICO. This is the only state that currently has neither a law acknowledging same-sex marriages, nor a law that prohibits them. Several counties have started issuing marriage licenses to same sex couples. But are the marriages legal? Probably so on a state level, since the county issued the license. However, the verbiage in the (federal) Dept of Treasury ruling on same-sex marriage states that the marriage will be recognized only if "valid according to the laws of the state" where the ceremony took place. That could be a problem for non-residents, so suggest you hold off on getting married in NM until they decide what they want to do.

3. SOCIAL SECURITY. If you will shortly be filing for either old age or disability benefits from Social Security, be aware that your marital status for filing will be based on the laws of your state. Therefore, if your state does not recognize the marriage from another state, you are considered UNmarried for Social Security purposes, and that precludes you from possibly getting a higher benefit based on your spouse's earning history. This isn't just a one year thing, but applicable for ALL future years. Most couples won't be materially affected by this but, if you are, you might even consider moving to a gay marriage state before filing.

4. DOMESTIC PARTNERSHIPS, CIVIL UNIONS, etc. If you entered into one of these state-recognized arrangements with someone other than the person you are planning to marry, see an attorney to see how you can dissolve that old contract. Failure to do so could make it easier for others to challenge the marriage (DP and CU are enforceable state contracts that generally say you agree to take care of your partner "above all others," which is impossible if you are married.) It can also help your ex seek financial compensation.

Ridiculously complicated, and a pain in the ass, right? Absolutely, but this is the kind of thing we will be dealing with, now and in years to come, until ALL laws are adjusted to put us on an even footing. FYI, the concept of a same-sex married couple affects parts of over 1,000 federal laws, not even counting income tax laws! This will take some time, and - for now - ongoing legal advice.

= Disclaimer: I am NOT an attorney, and the above is not to be considered legal advice. I am simply presenting some issues you need to understand - and possibly should discuss with your attorney - before entering into a same sex marriage. =

by TaxTrollEAreply 910/30/2013


Congratulations to same sex couples in NEW JERSEY, which can start getting married on Monday 10/21. Court refused to grant Gov Christie a hold on that, pending the appeal he filed.

Meanwhile, in OREGON - which has not officially accepted the concept of same-sex marriage and does not offer such marriages in the state - they announced that same sex couples married in OTHER states, but living in Oregon, will be afforded the same rights under state law as do other married couples.

by TaxTrollEAreply 110/18/2013

List of states (of which I am aware) where there are currently pending lawsuits or appeals pushing for repeal of state law prohibiting gay marriage, based on constitutional decision on DOMA:






MANY more to come, I am sure.

by TaxTrollEAreply 210/29/2013

Thank you, Tax Troll.

by TaxTrollEAreply 310/29/2013

Thanks, TTEA.

As to SS, is survivor benefits that require Congressional action, but is it the case that if I'm married and reside in a marriage equality state that my spouse can get the much higher benefits he would because of my income; but not if we were married and then moved to a non-marriage equality state?

by TaxTrollEAreply 410/29/2013

Florida = homophobic trailer trash; Michigan = homophobic blue collars; Ohio = homophobic farmers; Pennsyltucky = homophobic timewarp; Texas = homophobic cowboys.

Good luck.

by TaxTrollEAreply 510/29/2013

[quote]is it the case that if I'm married and reside in a marriage equality state that my spouse can get the much higher benefits he would because of my income; but not if we were married and then moved to a non-marriage equality state?

Your eligibility is set based on your residence at the time you first APPLY for benefits. If you are a resident of a state that recognizes same sex marriage, then you are married for benefit purposes, and can collect based on the higher of you or your spouse's computation. That doesn't change if you later move to a state that hasn't yet embraced same sex marriage.

But if you are a resident of a state that doesn't recognize your marriage at the time you register, you are banned from collecting on your spouse's earnings, even if you later move to a more liberal state.

by TaxTrollEAreply 610/29/2013

[quote]Florida = homophobic trailer trash; Michigan = homophobic blue collars; Ohio = homophobic farmers; Pennsyltucky = homophobic timewarp; Texas = homophobic cowboys.

Generalize much?

Actually, I'd usually be prone to agree with you on Florida, at least. And, while MI and OH have their share of homophobes as well, they also have areas with fairly open gay populations.

For what it is worth, I just saw a listing of the states with the HIGHEST percentage of same sex couples, and they show the following, in order:

1. Fort Lauderdale FL 2. Seattle, WA 3. San Francisco CA 4. Minneapolis MN 5. Portland ME 6. Somerville MA 7. Oakland, CA 8. Providence RI 9. Washington DC 10. Warwick, RI

Disclaimer: This is based on results of the latest US census, so - obviously - it is more of a test of what areas are open-minded enough that a couple wouldn't be hesitant to disclose they are indeed a gay or lesbian couple. But if you are a closeted gay couple in Bumf*ck KY, and your buddy Bubba (who got a temp job with the Census bureau) asks, you might not volunteer the fact that you are indeed a gay couple.

by TaxTrollEAreply 710/29/2013

Not likely to involve a lot of you here, but let me mention this, so you can pass it on to other couples who might benefit from the info ...

Are you a couple planning to ADOPT a child? Logic might tell you that being legally married could help you qualify, but there is actually a very BIG reason why you may want to wait ... the federal ADOPTION CREDIT.

This rather-generous federal tax credit (It can save you up to $12,650!) is NOT available to adopt your SPOUSE'S child. So, if it is your partner's kid, you can qualify for the credit if you are NOT MARRIED at the time the adoption is final.

by TaxTrollEAreply 810/29/2013

Thank you TaxTrollEA.

by TaxTrollEAreply 910/30/2013
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