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The Gay Divorc'

By Eric I. Wrubel

Since July 24, 2011, same-sex couples may legally marry in New York. (Marriage Equality Act (2011), www.governor.ny.gov/assets/marriageequalitybill.pdf.) While same-sex couples will now enjoy numerous benefits that were previously denied to them, a panoply of benefits provided by federal laws available to heterosexual married spouses continue to be unavailable to similarly situated same-sex married couples. This unequal treatment of legally married same-sex couples arose with the passage of the Defense of Marriage Act (DOMA) in 1996 by the U.S. federal government. (Defense of Marriage Act, 1 U.S.C. ' 7 (1996).) The enactment of DOMA permitted the federal government only to recognize the legitimacy of heterosexual marriages. (28 U.S.C. ' 1738C.) In other words, discrimination against same-sex couples legally married has been codified by the federal government since 1996. (See article infra, p. 1.)

The federal government's non-recognition of same-sex couples has far-reaching effects. This article does not attempt to address all of the current inequalities, but rather focuses on specific federal tax advantages that are unavailable to legally married same-sex couples who subsequently divorce ' advantages that are unavailable solely due to the couple's sexual orientation. As a result, until DOMA is repealed, practitioners must continue to utilize the remedies previously developed for the dissolution of same-sex relationships (when marriage was unavailable to same-sex couples) to overcome the existing federally sanctioned discrimination.

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