Taxes and Divorce for Same-Sex Married Couples

There are two areas where uncertainty about your marital status could create serious complications for you: taxes and divorce.

Taxes. On the tax front, your tax return will ask whether you are single or married. Frankly, neither answer is accurate if you're living in a nonrecognition state. The safest bet is to pick the marital status that results in the highest amount of taxes owed, as then the agency can't really complain that any harm came from your assertion of your status. You could also declare yourself as single but disclose on your tax return that you have a valid marriage that's not recognized in your state -- and let the tax authorities contact you if they disagree.

Divorce. For couples breaking up who want to obtain a divorce or dissolution, your legal situation could get sticky. If you married in a marriage-equality state but you currently live in a DOMA or nonrecognition state, you may have a problem getting your local court to take "jurisdiction" over your case -- meaning the court may say it doesn't have the power to divorce you because in the state's eyes, you're not married. And you can't just get a divorce in the state where you got married, because those states have residency requirements such that at least one of you would have to establish residency there in order to get a court to grant your divorce.

It's worth giving it a try in your home state. If you go into court with an uncontested divorce -- so that you're not asking the court to resolve any disputes -- you may find a sympathetic judge who will grant the divorce. If not, you could try for an annulment of your marriage on the grounds that it wasn't legally valid in your home state. If neither strategy works, one of you may need to relocate temporarily to the state in which you got married, in order to qualify for a divorce there.

So What Should I Do?

Your safest course of action if you don't live in a marriage state is not to get married right now. Tempting as it is to travel to the East Coast or Iowa to establish a legal bond, unless you're adventurous and not at all averse to taking risks, you might want to wait until the legal rules are straightened out.

If you are the adventurous type, at least create a written agreement covering issues of marital money and property. That way, if your relationship does end, you won't have disputes over how to divide your assets. You can find such an agreement in A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow (Nolo).

And if you're considering tying the knot out of state, an hour with a local attorney who understands LGBT legal issues would be a great investment. One good place to find an LGBT lawyer is Nolo's Lawyer Directory, where you can search the family law attorney listings for an attorney in your geographic area.

For a comprehensive, easy-to-understand guide to the past, present, and future of same-sex relationships in America, see Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz and Emily Doskow (Nolo).

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