Just because more states are making same-sex marriage legal doesn’t mean there aren’t still obstacles at the federal level to exercising all the privileges a heterosexual married couple enjoys. In fact, the federal Defense of Marriage Act, or DOMA, puts forth two principal provisions that should cause same-sex couples considering marriage in Connecticut to stand up and take notice.
First, DOMA invites state governments to refuse to recognize same-sex marriages contracted under the laws of a sister state. Second, DOMA declares that, for federal purposes, only people of different sexes may be considered legally married. This means that, with respect to the approximately 1,100 federal laws that take marital status into account, same-sex couples are still deemed unmarried.
What does that mean in practice? Here are some examples: Same-sex couples cannot file joint tax returns, cannot obtain spousal Social Security survivor benefits, cannot obtain the favorable tax benefits associated with leaving estate property to a surviving spouse, and cannot use their marriage to adjust the immigration status of an immigrant spouse.
The federal taxation issues around same-sex divorce alone are far-reaching. Again, merely by way of example, a divorcing same-sex couple may be denied the opportunity to make tax-free property transfers to one another, an alimony payor may be denied a tax deduction for his or her payments to a former spouse, and the parties may be precluded from making tax-deferred transfers of retirement account interests to one another.
At the end of the day, any same-sex couple looking to get married in Connecticut, or another state that allows same-sex marriage and same-sex divorce, needs to understand DOMA at the onset. There are judicial challenges to DOMA underway. There has even been legislation introduced to further the rights of same-sex couples. But until these challenges succeed or legislation is passed, DOMA is still governing the federal recognition of same-sex marriages and same-sex divorces.
Hilary B. Miller is a prominent Connecticut attorney on the cutting edge of same-sex marriage and divorce issues. Miller is also active in pro bono litigation of AIDS-related claims, including family, employment and insurance matters. He graduated from Fordham University School of Law and is admitted to the Connecticut, New York and District of Columbia bars. If you need expert advice on same-sex marriages, visit Miller’s family-law web site at www.ct-divorce.com.