Refusal to Grant Same-Sex Divorce: Uncertainty in Tax, Property and Marital Status Issues

Tax professionals have always had to advise clients on the consequences of marriage and divorce—how these events affect tax liabilities, investments, and status issues more generally. In recent years, several states have permitted same-sex marriages or same-sex civil unions that, under the Defense of Marriage Act, are not recognized for purposes of federal law and that, despite the Full Faith and Credit Clause of the Constitution, are not necessarily recognized by other states. This article addresses the tax, property, and marital status issues arising from a new issue, considered in several recent judicial decisions, that is an outgrowth of state statutes explicitly banning same-sex marriage: What happens when a same-sex union breaks up? Might a state that does not recognize or bans same-sex marriage nevertheless grant a divorce to a same-sex couple legally married elsewhere? If the answer is no, where does that leave the former couple and the investments that had been individually or jointly held? Even if the answer is yes, what are the tax, property, and status results if other states will not recognize the divorce? The author argues that courts inherently have jurisdiction to grant divorces for residents of their respective states notwithstanding state statutes explicitly banning same-sex marriage, and that granting a divorce is not contrary to the public policy expressed in those statutes