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The Supreme Court's Ruling on the Defense of Marriage Act and Its Effects on Same Sex Couples and Divorce in Colorado

By James S. Margulis, Esq.

On Wednesday, the Supreme Court overturned the 1996 Defense of Marriage Act (DOMA), which denied federal benefits to same-sex spouses in states where gay marriage is legal. By striking down DOMA, the Supreme Court stated that defining marriage as only between a man and a woman is no longer valid. In essence, it now allows for same sex couples in states where same sex marriages are legal to be eligible for federal benefits.

While this is certainly a very positive step forward, the immediate benefits only apply in states where same sex marriage is actually legal.

Unfortunately, in Colorado, that is not the case. In 2006, the State passed Constitutional Amendment 43 wherein it defined marriage as only between a man and a woman. Absent a successful legal challenge, it would take voter passage of an initiative to repeal the state constitutional amendment, or the State Legislature could refer the matter to voters by a two-thirds vote of both houses.

Of course, this state also just recently approved civil unions. However, with regard to DOMA, civil unions are not the same as legalization of same sex marriages.

Yet, it seems likely that in 2014, the State of Colorado will strike down the Constitutional Amendment and simultaneously pass a law that will legalize same sex marriages in Colorado.

When that occurs, there will be significant changes regarding same sex couples and divorce.

Same-sex couples that want to seek a divorce face a less complicated legal process.

Same-sex married couples will no longer have to pay state gift and/or inheritance tax if they divorce and divide their assets. Further, the primary breadwinner will now be able to deduct alimony payments from his or her federal income taxes.

That said, other divorce issues may make the divorce process lengthier and costlier for many same-sex couples.

For example, child custody issues also remain a quagmire for same-sex couples who have not jointly adopted their child. A non-biological parent who has acted as a parent to a child by providing emotional and financial support may or may not be deemed "in loco parentis" — in the place of a parent — by a divorce lawyer. If the non-biological parent has not adopted the child, he or she may have to apply for custody if one parent is deemed unfit, and may not qualify for standard timesharing rights.

Thus, once Colorado legalizes same sex marriages, it will certainly significantly benefit same sex couples. At the same time, it will raise new legal questions in the divorce arena.

The Domestic Practice Group at Cantafio & Song PLLC is here to walk you through all your domestic partnership legal needs.

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