Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Remember last year when Judge Tena Callahan let a gay couple get divorced?

It's happened again.

Judge Scott Jenkins let two women who married in Massachusetts five years ago get divorced in a Texas court earlier this week. The decision was made orally, so there's no written order available.

Of course, just like the case last year, this case will be appealed. The Texas attorney general, Greg Abbott, has already intervened to challenge the divorce order. He said that the couple can void the marriage agreement, but they can't get a divorce. Making the marriage void would let the couple "achieve a legal termination of their Massachusetts marriage, through an enforceable judgment."

With the mostly conservative Texas appellate courts, it's unlikely that the divorce will last down the line. The possibility that Texas joins the ranks of the other gay marriage states is even less.

Thanks to Michelle O'Neil, a Dallas divorce lawyer, for pointing out the article to me.

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Tara Siegel Bernard, a reporter with the New York Times, told me about a new feature on the paper's personal finance blog, Bucks. It's called, "What If You're Gay" and explores the complex financial issues that gay families face.

The first two posts in the series talk about gay divorce, including the higher costs associated with gay divorce and tips on how relationship laws affect couples breaking up. For example, the first post talks about a hypothetical couple getting divorced in Massachusetts:

But even a couple who marries and divorces in a state like Massachusetts — where gay marriage is legal — can face higher costs. The Internal Revenue Service hasn’t issued any guidance, but gay couples may not be entitled to the same tax-free division of assets as their heterosexual counterparts (at least as far as federal taxes are concerned) because of the Defense of Marriage Act, which bans federal recognition of same-sex marriage. Dividing the proceeds from a $500,000 home, for instance, could potentially translate into a $250,000 gift, subject to federal gift taxes (or at least use of part of your $1 million lifetime gift-tax exemption). For wealthy couples, the stakes are even higher.

Because I've gotten several questions about how being domestic partners affects insurance options, I suggested to Tara that the blog cover that topic. I'm looking forward to more posts in the series.

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Folks who live in Maine might be thinking about getting married in Canada after their state voted down a law that would have allowed gay marriage. In fact, many U.S. gay residents go to Canada to take advantage of laws that have allowed gay marriage since 2005.

But they better hope they stay together. It's hard for same sex couples to get divorced after getting married in Canada.

While couples can easily go to Canada for a weekend and get married, the country has more strict requirements when its comes to divorce. The Canadian Divorce Act says that for a couple to get divorced in Canada, one person must have lived in the country for at least a year just before the divorce. Not surprisingly, people may not want to move to Canada for a year just so they can get divorced.

But staying home has its own problems. The reason a gay couple goes to Canada to get married in the first place is usually because their own state doesn't allow gay marriage. But if it doesn't allow gay marriage, it probably won't allow gay divorce either. So Maine residents who now go to Canada to get married, for example, won't be able to get divorced back in their home state.

Barbara Findlay, a family lawyer in Vancouver, summarized the situation in the latest issue of Lawyers Weekly:

So unless they happen to be very wealthy and have nothing better to do with their time than to hang out in Canada for a year, they really can’t get a divorce here. In other words, they are stuck in a divorce catch-22.

Couples married in Canada aren't completely out of luck because they can still go to one of the few states that allows gay marriage and divorce. But these states often have their own additional rules. Massachusetts, for example, also has a 1 year residency requirement similar to Canada's.

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