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.

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