Same Sex Divorce Issues

Our Pittsburgh divorce attorneys are closely following the same-sex marriage discussion that is occurring nationwide, from recent votes upholding same sex marriage in Rhode Island and Delaware, to the public and widely debated Supreme Court decisions on the Defense of Marriage Act and Prop 8 in California.

These decisions, which are coming with more and more frequency in recent months, are important not just for the right of same-sex couples to get married, but also for them to get divorced. In many states, such as Pennsylvania, where marriage is designated as solely between a man and a woman, same sex couples who were legally married in other states are not able to get divorced. (Certain states do allow for same-sex divorces without allowing same-sex marriages.) This creates a big problem, because many states have a jurisdictional residency requirement before a court is able to grant a divorce. Therefore, same sex couples living in states where same-sex marriage is not recognized are not able to go into family court to get divorced.

Besides the primary issue, of not providing a legal means of ending a marriage and allowing both parties to continue going their separate ways, many economic issues are also raised. By not allowing same-sex couples to go through the divorce process, they are not able to engage in family court-monitored equitable distribution of their property. They may engage in civil court dissolution of property, but will not receive the same benefits. For example, if the couple opts to divide property themselves, they are not able to benefit from tax-free property transfers, with the transferring party forced to pay taxes on property received from their partner. Statistics have shown that in states in which same-sex marriage was recently approved, many couples got married and then subsequently divorced to take advantage of the tax benefits.

In Pennsylvania, same-sex couples cannot legally get divorced, however they can execute a cohabitation agreement that would be enforceable in civil court as a contract, similar to unmarried cohabitating heterosexual couples. This agreement would be enforceable as long as there is no evidence of coercion or duress, and is not made in exchange for sexual consideration. The right to divorce legally is an important, and related, issue to the right to marry. If you are considering divorce, or are living with someone of either gender, contact our experienced Beaver divorce attorneys today!