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The Gilmer Law Firm, PLLC

Wednesday, November 16, 2011

Same sex marriage equality and Defense of Marriage, Matrimonial Attorney, Brooklyn, NY

 

MARRIAGE EQUALITY ACT VERSUS DEFENSE OF MARRIAGE ACT

Off the top I explain to them that although New York performs and recognizes same sex marriages, there are many other states that don’t and the Federal Defense of Marriage Act does not force these states to recognize marriages performed in other states. In other words, the DOMA says that non recognizing states do not have to offer full faith and credit to states the do perform and/or recognize same sex marriages (there are some states that recognize but will not perform same sex   marriages).

The  Marriage Equality Act states that the same laws that apply to Husband and Wife now apply to same sex spouses. A small exception is that the clergy in New York does not have to perform a same sex marriage. Thus same sex couples that are married will now have the same rights and obligations in New York that Husband and Wife will have.

A spouse married in New York has many rights.  First of all, a spouse married in New York cannot be disinherited by the other spouse.  A surviving spouse has the  right of election if not included in the other spouses will. Secondly a spouse in New York has a right to the health care insurance of the other spouse.  Thus in the event of a divorce or the death of the other spouse, the spouse without insurance will have the right to be covered under  COBRA for up to three years. Thirdly, married couples have the right to hold property as “tenants by the entirety.”  This means that the married couple holds the property as an undivided whole and when the other spouse dies, the living spouse house a "right of survivorship," the right to the entire property undivided. Fourthly, a spouse has the right to make health care decisions for the other spouse. Finally a spouse cannot be forced to testify against another spouse in court, this is called the spousal privilege.

Spouses also have a number of obligations as well.  Most importantly a spouse has the duty to support the other spouse.  This is accomplished through the maintenance laws of this state.  Joint marital debts can be collected against both spouses as well.

Despite the rights of spouses in New York mentioned above, the Defense of Marriage Act effectively limits the “bundle of rights” that same sex couples.  If a same sex couple decides to move to another state that does not recognize same sex marriage, they could face a number of legal challenges. Also even if this couple stays in New York State they will also have many issues. First of all, and a huge issue with same sex marriages is that same sex couples are not treated the same under the United States tax Code as married couples because Federal Law does not recognize same sex marriage.  A same sex spouse of a Federal Employee will not be able to benefit from health insurance and pension rights in the same manor of a heterosexual couple. A same sex spouse will not be able to take off work to take care of a sick spouse under the Family and Medical Leave Act.  Heterosexual couples have this right.  A same sex spouse cannot petition for Immigration benefits, such as Permanent Residence, for their spouse, a heterosexual couple can. A same sex spouse is not entitled to military benefits.  Finally, married couples can make property transfers to each other without having to worry about the Federal Estate tax because of the marital deduction. Same sex couples do not have the marriage deduction because Federal Law under the Defense of Marriage Act does not recognize them as married.

One way around the may DOMA problems that arise from same sex marriages is a prenuptial agreement for same sex couples.  If you decide to do a prenuptial agreement it is very important that you each party has his or her own attorney and that both couples are given full financial disclosure.  Full financial disclosure means that your spouse should tell you everything about their financial situation, what they are walking into the marriage with. If you plan to move out of state, although the Marriage Equality Act will enforce your agreement in the state other states might refuse to enforce it if the consideration (or the quid pro quo) for the agreement was the marriage.  For example, in exchange for marrying me, I agree to pay you maintenance in a certain amount if we break up.  In a state that does not recognize same sex marriage this might not be seen as valid consideration. Therefore, it might be wise to entitle the agreement, a Cohabitation Agreement. Furthermore, a prenuptial agreement might help resolve some of the tax issues that might arise regarding property transfers.  For example, if Jim and John decide to get a divorce, and John agrees to give to Jim a house settling the equitable distribution issues surrounding the marriage, then Jim and John, unlike hetero sexual married couples will face tax consequences.  A prenuptial agreement can be used creatively to avoid tax consequences. For example, instead of property transfer, John could agree to keep the house in his name but pay the mortgage for Jim to keep him in the property. This is not a perfect solution and the repealing of DOMA would be the only way to ensure that heterosexual and LGBT couples are treated equally under the tax code.

Another problem arises with custody and visitation issues. If a same sex LGBT  married couple decides to have a baby (let’s call this couple Jane and Joan) and Jane gets artificial insemination.  Jane will be considered the biological parent.  Joan under New York’s Marriage Equality Act will be recognized as the parent of the child and would be able to assert the same rights that a heterosexual couple would be able to assert.  If this couple moves to another state that upholds DOMA  then Joan may not be recognized as the parent and as such might have a problem seeking custody or visitation in the event of a break up or divorce. Because of this legal hurdle I would strongly recommend a second parent adoption to be done by Joan to protect her rights.

There are some other equitable distribution issues specific to same sex couples. For heterosexual spouses the transfer of assets is a non taxable event.  Under DOMA, same sex couples are essentially seen as strangers and a transfer of assets may be looked at as a third party sale.  Federal law also allows heterosexual couples roll over IRA’s and transfer retirement accounts via a Qualified Domestic Relations Order tax free. Same sex couples may face tax consequences at the Federal level if these assets are transferred because the government does not recognize same sex marriages.  The government may impose a gift tax on transfers exceeding $13000. Due to DOMA and without a good prenuptial agreement many same sex couples may have to opt to keeping their assets separate to avoid tax liability for transfers.

Furthermore, one of the obligations of a marriage is to provide support to the other spouse.  Thus, a monied spouse may be required to pay the less monied spouse maintenance.  For heterosexual couples, the person paying maintenance gets to make a tax deduction on their Federal taxes and the person receiving it will have to pay taxes on what is received.   For same sex couples, the person paying the maintenance does not get to make the deduction and to add insult to injury the person receiving it still has to claim it on their taxes.

Also a heterosexual spouse is entitled to receive social security benefits of the other spouse after ten years of marriage.  A same sex spouse will not have this right. 

As you can see many complex issues arise involving same sex marriage when the Defense of Marriage Act is applied. If you have any further questions about same sex marriage, please contact me, George M. Gilmer, Esq. and would be happy to answer your questions.


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