Navigating Same Sex Divorce in Massachusetts

Navigating Same-Sex Divorce in Massachusetts

The legalization of same sex marriage in Massachusetts through the landmark Goodridge v. Department of Public Health decision in 2003 marked a significant milestone in LGBTQ+ rights. While this decision opened the door to marriage equality, it also necessitated the development of legal frameworks to address the dissolution of these marriages. Same-sex divorce in Massachusetts follows many of the same principles as different-sex divorce, but there are unique considerations that couples and their attorneys must navigate.

Legal Framework for Same-Sex Divorce in Massachusetts

Massachusetts has been at the forefront of recognizing same-sex marriages since May 17, 2004, when the Goodridge decision took effect. The subsequent Supreme Court decisions in United States v. Windsor (2013) and Obergefell v. Hodges (2015) further solidified these rights at the federal level. These landmark cases have significant implications for same-sex couples seeking divorce in Massachusetts.

Under Massachusetts law, same-sex couples have access to the same divorce procedures as different-sex couples. This includes both no-fault and fault-based grounds for divorce. Most couples opt for a no-fault divorce based on “irretrievable breakdown of the marriage,” which can be filed as either:

1. Section 1A (Uncontested): Both spouses agree the marriage has irretrievably broken down and have reached an agreement on all issues.
2. Section 1B (Contested): One spouse files claiming irretrievable breakdown, but the parties have not reached agreement on all issues.

While fault-based grounds remain available (including adultery, cruel and abusive treatment, desertion, etc.), they are less commonly used due to the additional time, expense, and emotional strain they typically involve.

Special Considerations for Same-Sex Couples

Despite the legal equality in divorce proceedings, same-sex couples often face unique challenges that require special attention during the divorce process.

Length of Relationship vs. Legal Marriage

One significant consideration for many same-sex couples is the length of their relationship prior to legal marriage. Some older couples were together for years or even decades before marriage became legally available to them on May 17, 2004. This raises important questions about how to treat the premarital portion of their relationship when dividing assets.

Massachusetts courts have shown a willingness to consider the entire length of a relationship when making equitable divisions of property. Drawing on principles established in cases like Moriarty v. Stone, attorneys can argue that contributions made during the premarital period should be considered when dividing assets, particularly when the couple would have married earlier had it been legally possible.

This consideration becomes especially important for couples who held commitment ceremonies or registered as domestic partners before legal marriage became available, and who formalized their marriage shortly after it became legal in Massachusetts.

This argument has not been successful for couples who have had the option of marriage available to them but have chosen not to marry. For same-sex couples who have chosen not to marry, their prior period of cohabitation or relationship will be treated the same as that of different-sex couples – it will generally not be considered grounds for extending the “length of the marriage.” 

Parentage and Custody Issues

Perhaps the most complex aspect of same-sex divorce involves determining the legal status of each parent with respect to children of the marriage. Unlike different-sex marriages where parentage is often presumed, same-sex couples may need to take additional steps to establish legal relationships with their children.

The threshold issue in addressing custody disputes between same-sex spouses is determining whether both parties are legal parents. Attorneys must analyze the legal status of each parent with respect to each child. If one party does not have a legal relationship with a child, the optimal approach is to establish that relationship through co-parent adoption before finalizing the divorce.

Massachusetts courts now allow for administrative allowance of adoptions by married same-sex couples, making the adoption process somewhat more streamlined. If adoption hasn’t occurred, children should be listed as children of the marriage in the divorce complaint, as the judgment of divorce will then operate as a parentage judgment that is entitled to full faith and credit by other states.

For children born to the parties prior to marriage, the Massachusetts Supreme Judicial Court’s decision in Partanen v. Gallagher (2016) established that a person without a biological connection to a child may be that child’s presumed parent under Massachusetts law if they can establish that the child was born to them and their partner, and they “received the child into their home and openly held out the child as their child.”

Custody and Parenting Plans

When both parents have established legal relationships with their children, custody determinations follow the same “best interests of the child” standard used in all Massachusetts custody cases. The court will consider factors such as:

• The child’s relationship with each parent
• Each parent’s ability to provide a stable environment
• The child’s established routine and need for continuity
• Each parent’s willingness to support the child’s relationship with the other parent
• Any history of domestic violence or substance abuse
• The child’s preference (if the child is of suitable age and maturity)

Massachusetts law presumes temporary shared legal custody during divorce proceedings, and each parent has a duty to support the child according to the state’s child support guidelines.

Removal and Interstate Recognition Concerns

A particularly concerning issue for same-sex parents is the potential impact of relocating with children to states that may be less supportive of LGBTQ+ rights. The Massachusetts Probate and Family Court loses jurisdiction over child custody matters when a child has resided in another state for six months. If the new state’s laws are hostile to same-sex parenting or if the legal landscape is unclear, parents could face contentious, protracted, and expensive litigation.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which reversed Roe v. Wade, has raised concerns about the potential vulnerability of other fundamental rights, including same-sex marriage. While Massachusetts is unlikely to restrict marriage rights, protections for same-sex married couples may be in jeopardy in other states.

For this reason, it’s crucial to address potential removal issues during divorce negotiations or trial. Divorce agreements should include provisions addressing what happens if one parent wishes to relocate with a child to a state with laws that might not recognize the other parent’s rights.

Financial Considerations in Same-Sex Divorce

Property Division

Massachusetts follows the principle of equitable distribution in dividing marital property. This means that property is divided fairly, though not necessarily equally, based on various factors including:

• Length of the marriage
• Conduct of the parties during the marriage
• Age and health of each spouse
• Occupation and income potential
• Contribution to acquisition of marital assets
• Contribution as a homemaker
• Needs of dependent children

For same-sex couples who were together long before legal marriage became possible, courts may consider the entire length of the relationship when determining an equitable division of assets. This approach recognizes that the inability to legally marry before 2004 was due to unconstitutional restrictions rather than the couple’s choice.

Alimony and Support

Massachusetts reformed its alimony laws in 2011, creating more predictable guidelines for duration and amount. The length of alimony payments is typically tied to the length of the marriage, with specific durational limits. For marriages under 5 years, alimony generally cannot exceed 50% of the length of the marriage, while for marriages of 20 years or more, alimony may be indefinite.

Tax Implications

The Tax Cuts and Jobs Act of 2017 changed the tax treatment of alimony for divorces finalized after December 31, 2018. For divorces finalized before that date, alimony payments are tax-deductible for the payer and taxable income for the recipient. For divorces finalized after that date, alimony is neither deductible for the payer nor taxable for the recipient.

Revenue Ruling 2013-17 established that all legal same-sex marriages are recognized for federal tax purposes. This means that transfers of assets incident to divorce are non-taxable events for same-sex married couples, just as they are for different-sex married couples.

However, for couples terminating civil unions, registered domestic partnerships, or other similar formal relationships that are not denominated as marriages under state law, these favorable tax treatments may not apply. In such cases, couples might consider legally marrying before divorcing to take advantage of the more favorable tax provisions.

Health Insurance Considerations

Massachusetts law allows divorced spouses to remain on their ex-spouse’s health insurance in certain circumstances. Same-sex spouses have been entitled to these protections since 2004, provided they are otherwise eligible.

Before the Supreme Court’s decisions in Windsor and Obergefell, the federal Defense of Marriage Act (DOMA) permitted employers to discriminate in offering health care benefits and continuation of coverage to same-sex spouses of employees. Following these decisions, the Department of Labor issued guidance clarifying that same-sex spouses must be treated the same as different-sex spouses for purposes of employee benefit plans. 

The Divorce Process for Same-Sex Couples

The process for same-sex divorce in Massachusetts follows the same procedural steps as any divorce:

1. Filing the Complaint: One spouse files a Complaint for Divorce with the Probate and Family Court in the appropriate county.
2. Service of Process: The complaint must be legally served to the other spouse, typically by a sheriff or constable.
3. Automatic Financial Restraining Orders: Upon service, automatic financial restraining orders take effect, preventing either spouse from selling or transferring property, incurring unreasonable debts, or changing insurance beneficiaries.
4. Temporary Orders: Either spouse can request temporary orders addressing immediate concerns while the divorce is pending, including custody, support, and use of the marital home.
5. Discovery Process: Both parties exchange financial information and other relevant documents.
6. Pre-Trial Conference: The court holds a conference to identify contested issues and explore settlement possibilities.
7. Settlement or Trial: Most divorces settle before trial. If settlement isn’t possible, the case proceeds to trial.
8. Judgment and Nisi Period: After the divorce hearing or trial, the court issues a Judgment of Divorce Nisi, which becomes absolute after a waiting period (typically 90 days for no-fault divorces).

For same-sex couples who entered into civil unions or domestic partnerships in other states before marriage was available, there may be questions about how to dissolve these relationships. In light of the Massachusetts Supreme Judicial Court’s decisions in Elia-Warnken v. Elia (2012) and Hunter v. Rose (2012), these relationships should be treated as spousal relationships equivalent to marriage, and couples should file for divorce under Chapter 208 to end these relationships.

Preparing for Same-Sex Divorce

Selecting the Right Attorney

Finding an attorney experienced in Massachusetts family law who understands the unique considerations in same-sex divorce is crucial. Look for an attorney who:

• Has substantial experience in family law
• Has specific experience with LGBTQ+ family law issues
• Communicates clearly and responds promptly
• Provides realistic expectations
• Demonstrates a strategic approach

Gathering Documentation

Begin collecting important documents, including:

• Financial records (bank statements, investment accounts, retirement accounts)
• Tax returns for the past three to five years
• Property deeds and mortgage information
• Vehicle titles and loan information
• Insurance policies
• Credit card statements and other debt information
• Business valuation documents if you own a business
• Employment information including benefits and compensation
• Documentation of the relationship prior to legal marriage (if applicable)
• Birth certificates and adoption decrees for children
• Any pre-marital agreements or cohabitation agreements

Addressing Parentage Issues Proactively

If there are questions about the legal status of either parent with respect to children of the marriage, address these issues proactively. Consider completing second-parent adoptions before finalizing the divorce if possible. If adoption isn’t feasible, ensure that children are listed as children of the marriage in the divorce complaint.

Post-Divorce Considerations

Estate Planning Updates

After divorce, it’s essential to update estate planning documents to reflect your new circumstances. This includes:

• Revising wills and trusts
• Updating beneficiary designations on life insurance policies and retirement accounts
• Creating new powers of attorney and health care proxies
• Reviewing and updating any other estate planning documents

Co-Parenting Across State Lines

For same-sex parents who will be co-parenting after divorce, particularly if one parent may relocate to another state, developing a comprehensive parenting plan is crucial. This plan should address:

• Regular parenting time schedules
• Holiday and vacation schedules
• Communication protocols
• Decision-making processes for major issues
• Provisions for potential relocation
• Mechanisms for resolving disputes

The plan should also include provisions addressing what happens if one parent moves to a state with laws that might not recognize the other parent’s rights. 

Conclusion

Same-sex divorce in Massachusetts follows the same legal framework as different-sex divorce, but presents unique considerations that require careful attention. By understanding these considerations and working with experienced legal counsel, same-sex couples can navigate the divorce process effectively and establish post-divorce arrangements that protect their rights and the well-being of their children.

The evolving legal landscape for LGBTQ+ rights makes it particularly important for same-sex couples to take proactive steps to protect their legal relationships with children and to address potential interstate recognition issues. With proper planning and legal guidance, same-sex couples can achieve fair and equitable divorce outcomes that provide a foundation for moving forward.