SCOTUS strikes down DOMA; Impact on Family Law

Issue August 2013 By Patience Crozier

On June 26, 2013, the United States Supreme Court invalidated the Defense of Marriage Act in United States v. Windsor. The decision struck down a key section of DOMA, which defined marriage as between a man and a woman for the purpose of federal law.
The United States Supreme Court's holding in United States v. Windsor, 570 U.S. ____ (2013) - declaring Section 3 of the so-called Defense of Marriage Act unconstitutional - touched many in Massachusetts, the birthplace of marriage equality in the United States. The case is cause for relief in many respects, but challenges for lawyers and inequities for LGBT clients remain. Family lawyers must be careful and thoughtful in reviewing Windsor and its implications.

In Windsor, the U.S. Supreme Court determined that Section 3 of DOMA was unconstitutional on equal protection and due process grounds. Section 3 prohibited federal recognition of same-sex spouses as spouses under federal law, denying over a thousand federal rights to same-sex couples. (See 1 U.S.C. § 7.) With the decision, married same-sex couples in Massachusetts are now recognized as spouses under federal law. Federal benefits through employment, for example, are now available to same-sex couples without concern over increased taxes on the imputed income. Same-sex divorces will now be simpler and more straightforward because these couples will be treated the same as their different-sex divorcing peers. Same-sex couples may now divide retirement accounts, divide property without concern about the tax ramifications, benefit from the tax advantages of alimony, provide health insurance to former spouses without imputed income and the additional tax burden, and so forth. After a decade of struggling to fashion equitable separation agreements under discriminatory federal law, the divorce landscape is now much simpler and fairer.

Challenges remain

Section 2 of DOMA remains intact, meaning that sister states do not have to recognize same-sex marriage. More than 30 states have either legislative bans or constitutional bans against same-sex marriage (or both). For family lawyers, that means we need to educate ourselves about the law of all the states to ensure our clients will be protected wherever they travel or reside. Married couples who have moved to a non-recognition state may be unable to divorce. In drafting separation and premarital agreements, language should be incorporated to ensure that the agreement is recognized as a contract in all jurisdictions even if the marriage is not recognized. It is critical for couples to complete co-parent adoptions of their children. A married couple who gives birth in Massachusetts will both appear on their child's birth certificate, but if they do not adopt and subsequently move to a non-recognition state, only the birth mother will be recognized as the legal parent. A judicial decree of adoption will be recognized nationwide, but parentage flowing from marriage will not. Couples should also be advised to revisit their estate planning documents and consider revisions to ensure federal protections available to married persons.

Questions abound

Will retroactive relief be available? Should couples seek to amend federal tax returns? Will widows/widowers now qualify for certain Social Security benefits previously unavailable? Married same-sex couples who live in non-recognition states should be aware that while certain federal benefits are based on the marriage being valid where celebrated, others are based on the marriage being valid where the individual resides. Because civil unions and registered domestic partnerships confer a legal spousal status not recognized as a "marriage" per se for federal purposes - federal benefits will likely be unavailable to these couples. Fortunately, in Massachusetts (and in other recognition states), a civil union or registered domestic partnership will be treated as a marriage for all state purposes. There is no doubt that - as a result of these many serious and unanswered questions - we can expect numerous legal challenges across the country, not only to the possible denial of federal benefits to legally married same-sex couples but also to the many state bans on same-sex marriage itself.

Lawyers must continue to educate the public about the rights and responsibilities of marriage, the implications of Windsor and the patchwork of protections and pockets of discrimination that still exist. Practitioners and clients must consult with legal, tax and financial professionals with specific expertise in LGBTQ issues. The Windsor case is an exciting and substantial step forward, but it cannot be an invitation to complacency. It is wise to remain vigilant in following developments for same-sex clients, couples and families, to ensure that same-sex couples and their children are fully protected.