Same Sex Marriage and Divorce

Utah began recognizing same-sex marriage in 2011. However, matrimony is not enough to protect your rights. Although same-sex couples are granted the same privileges and obligations as heterosexual partners within Utah, you do not have equal rights under federal laws or in the states that don’t recognize your marriage. You can counter this disparity through careful planning that includes things like:

An advance care directive — If you are fatally injured while visiting another state, medical privacy laws may prevent your spouse from being notified and given the right to make crucial end-of-life care decisions unless you execute a valid living will and power of attorney.
Estate planning to minimize death taxes — Because the federal laws do not recognize your marriage, the IRS does not allow you to claim the same exemptions and deductions as heterosexual couples, but you can apply certain legal tools to minimize estate tax liability. A last will and testament — Although your property is subject to Utah estate succession laws, you can avoid probate claims made by other family members by making clear provisions in your last will and testament that bequeath out-of-state assets to your spouse. A prenuptial agreement — Utah divorce laws apply to all couples equally. However, relocation to another state that does not recognize same-sex marriage could jeopardize your property rights should you later separate from your spouse.

Joint tenancy interests — Owning real estate as joint tenants protects your interest in the property should you ever divorce or your partner die.
Parental rights — In Utah, you are considered the parent of a child born or adopted during your marriage. Taking steps to maintain the jurisdiction of Utah courts during a divorce is essential because some states do not recognize your parental rights.

The United States Supreme Court has addressed two cases concerning the rights of same-sex couples.

One was United States v. Windsor — the court ruled Section Three of the Defense of Marriage Act (DOMA) is unconstitutional and deprives citizens of their liberty under the Fifth Amendment of the Constitution of the United States. The ruling in the case brought by Utah Edith Windsor extended federal benefits to same-sex couples in states where their marriage is recognized. The other case was California Proposition 8 — a majority ruled the case was not before the court on proper grounds and declined to address the matter. The action left a trial court action in place, allowing California same-sex couples to marry.

As a result of the Windsor ruling, Utah Governor recently announced that same-sex partners who paid taxes when their spouses passed away will receive refunds. In California, the state Supreme Court recently refused a second request to order county clerks to stop issuing marriage licenses to same-sex couples.

While the Supreme Court rulings provide support for the rolling movement toward legalized same-sex marriage across the nation, the court did not address the issue of lack of recognition of same-sex union in states where it is not legal. Now, same sex marriage and same sex divorce is allowed through out the entire United States. We’ve talked about this before here.