Tag: Divorce Same Sex

Same Sex, Common Law Marriages

Florida deems common law marriages void. What about a common law marriage from another state? In many same-sex relationships, which were not legal until recently, that is now an issue.

Groundbreaking New Case

In South Carolina, Debra Parks wanted to be treated the same as anybody else. She wanted her relationship, which ended last year, to be considered a common-law marriage under South Carolina law. Parks is gay. But until 2014, same-sex marriage was illegal.

In a groundbreaking case for South Carolina, a Family Court judge has ruled that Parks and her former partner had a common-law marriage under state law. And the state must recognize that their common-law marriage has been legal for almost 30 years, the judge ruled.

The ruling means same-sex couples now have the same retroactive rights as heterosexual married couples, experts say. Those rights include alimony, health insurance, taxes, the division of property and others.

I’ve written about same-sex relationships before. The South Carolina ruling immediately becomes a legal precedent, and has the potential to impact thousands of people in same sex relationships because it backdates the period of effect to the beginning of the common-law marriage.

‘A rose by any other name would smell as sweet,’” the judge wrote. “The law established by the U.S. Supreme Court in Obergefell should be applied retroactively in South Carolina.”

Florida Common Law Marriages

South Carolina is one of eight states that recognize common law marriage. The case is important because same sex marriages were not recognized until 2014 and left an entire group of people “out in the cold” without the protections the law provides to heterosexual couples.

Florida law is different. No common-law marriage entered into after January 1, 1968, is valid in Florida.

The South Carolina case could create a conflict between Florida Statutes – which makes common law marriages in Florida void as of 1968, the Parks case, which recognizes the creation of same-sex, common law marriages in South Carolina.

The order states that Parks’ common law marriage is retroactive to the time when Parks divorced her husband while already living with her same sex partner. The larger question for interstate actions is whether Florida would give full faith and credit to the South Carolina judgment.

Interstate Problems

The generally established principle is that the validity of a marriage is determined by the law of the place where the marriage occurred. So, while Florida no longer recognizes common law marriages, nevertheless, it may to recognize the validity of common law marriages in other states.

Given the U.S. Supreme Court’s decision to recognize same sex marriage, everything else from the marriage follows including rights of the parties, including marital property, alimony, divorce, and anything else. The rights and duties of marriage now apply to same sex couples.

The South Carolina Herald article is here.

Unseen Problems with DOMA

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, June 24, 2013.

Because many people are familiar with divorce, either through their own divorce or living through their friend’s divorce, it can be a prism to understanding legal controversies.

I was involved in a case on behalf of a client who was in a 9 year relationship, and this client has a 2 year old. There is a house and a rental apartment, and two 401(k)s to distribute. We are also going back and forth about the amount of child support and alimony to be paid.

In other words, this is a typical divorce. Except for one thing, both of the parties are women. Under the federal Defense of Marriage Act (otherwise known as DOMA), the law we apply in every other divorce doesn’t apply to this relationship. This form of discrimination can lead to unfairness which directly impacts your bank account.

In a typical divorce, one party might have to pay alimony to the other. Under our tax code, alimony when paid pursuant to a court order or written agreement, is tax deductible to the paying spouse, and is included in the taxable income of the payee spouse.

The tax-deductibility of alimony allows divorce lawyers to use the tax deductibility in ways to maximize the dollars available to everyone. Sometimes the payor spouse may actually want to pay more alimony because the overall payment for both child support and alimony could be less after you tax effect the payment.

However, under DOMA any support payment paid cannot be construed as alimony in Florida, and would not be deductible under our Federal tax code, because the couple is homosexual. Under DOMA certain tax advantages available to every heterosexual married couple are not available to homosexual couples by law.

Many people have different views about same-sex marriage, but there are a few far-reaching effects of DOMA that many people may not be aware of. Sometimes, putting it into perspective of a divorce, which many people are familiar with, can give people a better understanding why people oppose DOMA.

In the next week or so, the U.S. Supreme Court will announce its decision in the federal DOMA case. The name of the case is United States v. Windsor, and can be followed here.