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Property Division Issues in Gay Divorce

Law Offices of Warren R. Shiell, Los Angeles Divorce Lawyer

"The next same-sex challenge: divorce" published by Los Angeles Times By Sue Horton, July 25, 2008 

Around the country, same-sex couples are discovering that getting divorced can be far more complicated than getting married. Sometimes the problems stem from living in a state with different laws from the state where the marriage took place.

But even in Massachusetts and California, where married gay couples have the same right to divorce as heterosexual couples, a clash between federal and state laws makes the process anything but equal.

Because federal law defines marriage as being between a man and a woman, the federal government doesn’t extend many standard divorce benefits to same-sex couples. As a result, say lawyers familiar with the issues, even in states where gay couples are allowed to divorce, they face financial consequences that heterosexual couples don’t. Among them:

* If a judge orders a heterosexual couple to divide a pension during a divorce, federal law allows the pension to be divided without triggering early-withdrawal penalties. Divorcing gay couples must pay the penalties.

* Court-ordered alimony payments can be deducted from federal income taxes in straight divorces, but not in same-sex divorces.

* In gay divorces, when a judge orders one party to give money or other assets to a spouse, those assets may be subject to gift or income taxes.

* When real property is transferred from joint ownership to one gay spouse by a court order, capital-gains taxes are often triggered.

Opponents of same-sex marriage say the issues were to be expected.

These problems illustrate why it is a bad idea to redefine marriage in California in a way that is at odds with the rest of the country,” said Andrew Pugno, legal advisor to protectmarriage.com, a coalition of churches, organizations and individuals supporting the California Marriage Protection Act on the November ballot.

Same-sex couples who choose to marry, he said, have to understand that “the federal government doesn’t recognize any marriage that’s not between a man and a woman.”

They’ve given us no choice but to be married forever,” said Ormiston. “Their worst nightmare.”

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Law Offices of Warren R. Shiell, Los Angeles Divorce Lawyer