Separation Anxiety: Five Burning Questions About Same-Sex Splits


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1. My husband and I are splitting up. Will he get half my stuff?

When there's a disparity in wealth between two spouses, divorce gets interesting. "People all of a sudden feel, 'You didn't earn this! I was the one out there working!'" says divorce lawyer Peter Zupcofska. "Yet in a lot of those cases, the man was expected to be at home." The law guarantees that neither spouse will be left impoverished because of a breakup. One factor the court looks at in awarding alimony and splitting the assets is the length of marriage. Courts are more willing to approach going halfsies with two men who are legally married (even for a short time), as opposed to two men living together as partners. Still, because the federal government doesn't recognize same-sex divorce, settlements create a tax minefield. In a heterosexual divorce, the transfer of assets isn't a taxable event, but when a gay couple divorce, transferred assets are taxed as gifts, often at up to 50 percent, or may be subject to capital-gains penalties. Likewise, alimony payments for heterosexual divorcees are tax-deductible but in a gay split can be taxed as gifts.

2. My long-term boyfriend and I are getting married. What should I do about a prenup?

Conventional wisdom says a prenup favors the wealthier spouse, and typically it does, though because of tax issues, it's advisable to consider setting forth a breakdown of assets regardless of your financial status. If one partner comes into the marriage with no assets, Zupcofska often advises annual gifts (currently up to $13,500 a year tax-free to one person). If there are considerable assets at stake, this is a good time to think about who is going to get what, and the tax implications, and put the deed to each property in the right spouse's name. If you split up, taxwise nothing is being transferred. This might come back to haunt you if you stay happily married and one spouse dies—all those divided assets count as part of the deceased's estate. That will change if DOMA is repealed, but divorce lawyers like Zupcofska plan as if it will remain the law of the land and include an escape clause that allows the prenup to be revisited if DOMA is repealed. When drafting a prenup, Zupcofska broaches an often taboo topic: infidelity. In those instances where a gay couple have their own rules about sex outside the marriage, he is sure it's written into the agreement. "We say that they will not bring any fault actions or divorce complaints because of adultery," he says. Translation: What happens in Rio stays in Rio—and out of alimony calculations.

3. My husband and I have kids—now we're splitting up. What are the same-sex custody issues?

Zupcofska advises all same-sex couples to legally adopt their spouse's children—even if they live in a state that recognizes gay marriage. "It's the issue of portability," Zupcofska explains. He tells the story of a lesbian couple—let's call them Sally and Jane—who married in Massachusetts. Sally gave birth to a child that she and Jane raised together. Since they're legally married, Massachusetts recognizes both women as the child's parents. Jane's father, who lived in Florida, died, leaving $1 million to each of his six grandchildren. Since Florida doesn't recognize same-sex marriage, Jane's daughter's in the rare position of being a granddaughter in Boston but a stranger in Palm Beach. Marriage may not be forever. But adoption can be.

4. We married in Manhattan and are divorcing in Miami. Is that a problem?

This is a prime example of DOMA steamrolling states' rights. It says not only that the federal government won't recognize gay marriage but also that no state is compelled to recognize another state's sanctioning of it. So if a same-sex couple wed in New York move to Florida and want to divorce, they will likely find themselves in a legal morass. Florida can't legally end a marriage it never recognized. So one half of the couple will have to establish residency in a state where gay marriage is legal. It's not as simple as setting up a new forwarding address, either. To start with, that's fraud. Also, there's the issue of income tax—expect to take a hit, since Florida has none, though every state that sanctions gay marriage does, with the exception of New Hampshire.

5. I'm a foreign national. Can I marry an American man, get citizenship, and then split up?

The federal government—not the states—issues green cards, meaning that, thanks (again) to DOMA, gay green-card marriage is an impossibility. Gay would-be immigrants looking to remain in the country will have to find lonely, cash-starved ladies to marry them. "There have been a number of heartbreaking stories of gay marriages with non-green-card holders," Zupcofska says, "that result in the noncitizen being forced to leave." And executing a gay divorce from abroad can involve even more hassles than doing so across state lines.

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