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Tax and Pension Considerations in Same-Sex Divorce Actions
New York is one if the very few U.S. jurisdictions, other than those states that have actually authorized same-sex marriage (Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont), to have given full faith and credit to same-sex marriages validly performed in other jurisdictions. Now that New York courts have explicitly recognized same-sex marriages validly performed elsewhere ' both in those U.S. states that permit such marriages and in non-U.S. jurisdictions such as Canada (see, e.g., Beth R. v. Donna M, 19 Misc. 3d 724 (Sup. Ct. N.Y. Cty. 2008) and C.M. v. C.C., 21 Misc. 3d 926 (Sup. Ct. N.Y. Cty. 2008)) ' we can expect a growing number of same-sex couples, validly married somewhere else, to follow their heterosexual counterparts into New York's divorce courts.
For several reasons, however, same-sex divorce involves complexities not usually seen in more traditional matrimonial actions. These complexities arise because of the interplay of state law, which typically governs familial relationships, and U.S. federal law, which substantially determines the tax and pension consequences of marriage and divorce. The federal Defense of Marriage Act (DOMA) denies spousal status to same-sex couples, even if their marriages are valid, and thus such couples cannot be treated as married for income-tax and other federal purposes. In addition, DOMA explicitly permits states to deny full faith and credit to the actions of other jurisdictions with respect to same-sex married couples. Therefore, the portability of New York same-sex divorce settlements and decrees, along with provisions for child custody, support and spousal maintenance, to other states is extremely problematic.
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