With the recent legalization of gay marriage in New York, gay rights activists are pushing for similar laws in other states. It appears such laws are increasingly likely; however, there is one aspect many people overlook: divorce.
Though this is not exactly a positive topic, it is nevertheless something to consider before traveling to another state (or to Canada) to obtain a gay marriage. Each state that recognizes gay marriage also recognizes divorce. Conversely, states that do not recognize gay marriage will generally not grant a gay divorce.
This is a problem for those couples who are not residents from the state or country in which they legalized the marriage. Those states that recognize gay marriage require residency for anywhere from 6 months to a year before granting a divorce. This leaves many same-sex couples with no way to legally divorce, unless they move to the state of their marriage.
This further complicates division of assets. While splitting assets after divorce is generally a routine matter, splitting assets during a gay divorce can be extremely difficult. Many of the assets will be treated as gifts, so certain taxes might apply. Currently, the tax law allows a $13,000 gift without being subject to the gift tax. Any payment higher than that, can be taxed. There are ways around this. For example, you and your former partner can enter a settlement agreement that divides the assets in a planned amount. This could involve establishing an irrevocable trust and paying the money out over several years, thereby bypassing the gift tax. Another way is to use some of your lifetime gift tax exemption and filing a gift tax return with the IRS)
Getting a divorce is never easy, especially for same-sex couples. Nevertheless, workable solutions exist. Contact Jacksonville Attorney, Patye Davis at Law Office of David M. Goldman to discuss any questions you may have.
Contributed by Kyle R. Kelley, executive editor of Florida Coastal Law Review.