Question: I am a 45-year-old gay man, and have been in a committed relationship with my partner for seven years. We would like to marry if, and when, homosexual marriage becomes legal in our state. But we weren’t born yesterday, and we have both been through divorces from our wives some years ago. As part of our thinking process, we’d like to know the status of divorce law regarding gays.

Answer: Since gay marriage is recognized in only one state – Massachusetts – and only there since 2004, it’s very early in the process to talk about divorce law regarding gays. (Civil unions are recognized in New Jersey, New Hampshire, Vermont, and Connecticut. Maine recognizes “domestic partnerships,” which offer more limited protections than civil unions. New York, Rhode Island, New Mexico, and Oregon are weighing various “marriage alternatives,” and the California Supreme Court is considering the legality of homosexual marriage. Abroad, gay marriage is legal in Canada, the Czech Republic, Spain, Belgium, and the Netherlands, while civil unions are recognized in Britain and New Zealand.)

To get more information on the subject, we talked to Norman Heller, who chairs the matrimonial group practice at the New York law firm Blank Rome. He has also served as a mediator in divorce cases and presents at workshops and conferences frequently on a wide variety of matrimonial law topics.

Homosexual marriage is “so new,” says Heller, that “we’re just now beginning to see some litigation come out of it.” Earlier this year, a New York judge allowed a gay couple who married in Canada to sue for divorce, even though New York doesn’t recognize same-sex marriage. New York has become a testing area for gay marriage reciprocity because the majority of other states have passed their own Defense of Marriage Acts, which explicitly prohibit gay marriage.

But the reciprocity discussion is spreading. Just last week, the Rhode Island legislature began debating two bills that would allow same-sex couples to get divorced in the state, which does not recognize gay marriage or civil unions.

Heller expects that eventually, “divorces among homosexual couples will become a regular part of law practice and people will try to remember what it was like when these things didn’t exist.” And while many of the same issues exist in both heterosexual and homosexual divorce cases (in 2006, Spain’s first gay divorce involved a custody battle – over the couple’s dogs), there will be some differences, Heller says.

• Under the terms of the federal Defense of Marriage Act (DOMA), signed into law in 1996, gay couples are denied federal partner benefits, such as Social Security payments. This is not the case with heterosexual couples who are divorcing.

• Under the Internal Revenue Service code, husband and wife can make gifts to one another free of gift or estate tax. Because of DOMA, such transfers between gay partners would be subject to gift or estate taxes, which could complicate divorce settlements.

• Similarly, under the IRS code, if a heterosexual couple gets divorced and the agreement provides for alimony from one spouse to the other, those payments are generally taxable to the recipient and tax-deductible to the payor. But since the IRS code and the federal government don’t recognize homosexual marriage, it’s “very likely” that any alimony payments authorized for a gay partner under state law would not be deductible to the payor and probably would not be taxable to the payee. In addition, says Heller, any such transfer could be subject to the gift tax.

• Child custody issues could be more complex in gay divorces. While the biological parent would always have legal rights to the child, the legal rights of a non-biological parent in a gay marriage or civil union have not been determined.

• Prenuptial agreements would probably be open to gay couples, but would the contracts be enforceable? In Connecticut, for example, where civil unions are recognized, the prenup probably would be enforceable, says Heller. But if a Connecticut couple in a civil union moved to South Carolina – which does not recognize gay marriage or civil unions – that prenuptial agreement might not be honored.


So, the bottom line here is that the issues regarding gay divorce are very much at their starting point. Heller expects it will take 20 more years to develop case law in this area. In the meantime, both gay and straight couples would be wise to enter any legal relationship with their eyes fully open.