Same-Sex Divorce: DOMA and the Internal Revenue Code

At the present time, same-sex marriage is permitted in six states, while civil unions or domestic partnerships are permitted in five others. In the near future, other states will probably follow suit and enact civil union or domestic partnership legislation. Despite differences in nomenclature, same-sex marriage, civil union, and domestic registered partnership laws uniformly provide that their participants are to be treated as spouses for all state law purposes. They thus bear the same burdens and they enjoy the same benefits as spouses in a traditional heterosexual marriage. This article examines one aspect of the problem—the tax issues which will inevitably arise when participating couples in same-sex unions are divorced or legally separated. It is still too early to tell whether same-sex marriage or civil union will result in the same rate of divorce as is the case in heterosexual marriages. But surely there will be divorces, separations and, where there are children, support and custody issues. As in the case of traditional marriages, the local divorce courts will be called upon to order alimony or spousal support payments, the division of property, and support of children adopted or born into the same-sex union