Articles Posted in Same Sex Marriage

Actress Jane Lynch recently settled her divorce proceedings and is actually on good terms with her ex, according to TMZ. Perhaps the reason for their civilized relationship post-divorce is because they resolved their issues through collaborative divorce thus avoiding the emotionally draining process of litigating divorce proceedings in court.

Many people are familiar with litigation and mediation, but not all are familiar with the process of collaborative divorce. That’s because collaborative divorce is a relatively new form of alternative dispute resolution which was developed in the early 1990s. However, collaborative divorce has grown rapidly since then because of its success in leading to healthier and more positive results throughout the divorce process.Unlike litigation, where the Judge makes the decisions regarding the parties’ divorce based on formulas created by the state, collaborative divorce gives the parties the authority and control to decide for themselves and focus on joint and creative problem solving, similar to mediation. The focus of collaborative divorce is to provide a healthy forum with a team of professions to help the couple reach a settlement that is in the best interest of the child and both parties, all while avoiding the uncertainty, expense and added stress that comes with litigating in court. Collaborative divorce also focuses on the future by teaching the parties to interact with each other in a respectful manner which will carry through their post-divorce relationship and co-parenting.

The expanded team of independent professionals who work as a team to be involved in collaborative divorce typically includes attorneys (each spouse has a trained collaborative attorney), child custody specialists, financial specialists, and licensed mental health professionals. Having so many professionals at your fingertips allows for more guidance and access to information which helps to lead to a more mutually beneficial outcome for everyone involved.

Typically, both spouses and their respective collaborative divorce attorneys sign a “Participation Agreement” which outlines their commitment to settle their divorce in a non-adversarial manner, work on their communication and interaction with one another, act in their children’s best interest to minimize emotional damage, retain neutral experts if necessary, and maintain status quo regarding children and assets throughout the collaborative process. The collaborative process requires both parties to dedicate themselves to working through their divorce with an honest and open mindset in which the welfare of their family is the top priority.

Although divorce is the end of a marriage, collaborative divorce can provide the parties involved with the opportunity for a healthy new start in which they are able to move forward with their lives and avoid the bitterness, anger and resentment that is often associated with a divorce.
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The Defense of Marriage Act (DOMA) was enacted on September 21, 1996 and permitted the states to refuse to recognize same-sex marriages legally entered into in other states. This means that under DOMA, if a same-sex couple who legally married in Hawaii moved to California, California would not be required to recognize the marriage and provide state benefits otherwise provided to married couples. In June 2013, the Supreme Court of the United States declared DOMA unconstitutional. In the aftermath of that landmark decision many same-sex couples are questioning whether they will receive any retroactive relief for the various benefits they were deprived of for nearly seventeen years.

New York legalized same-sex marriage in June 2011 and extended equal rights under estate tax law to legally married same-sex couples in July that same year. Estate tax rights were even extended to those married in other states before New York legalized same-sex marriage. However, federal laws prevented New York from implementing any retroactive application of the estate tax law. This problem came to light when Edie Windsor sued the IRS for denial of her right to inherit granted to other married couples. In 2009, Edie paid $363,000 in federal taxes upon the death of her spouse. As their marriage was not federally recognized under the tax code, she was unable to reap estate tax benefits available to married couples. The Supreme Court held Edie was entitled to a tax refund.Similarly, since Massachusetts issued the first marriage license in the United States to a same-sex couple in 2004, wedded same-sex couples have been unable to file joint federal tax returns. Although a same-sex couple may be married under the laws of their home state, they were unable to claim any federal tax benefits. Now that such federal tax laws have been overturned, same-sex couples question whether they can retroactively realize federal tax benefits back to the date of their marriage.

In general, a tax refund can be claimed within three years of filing the incorrect tax return or within two years of the overpayment. Under this common rule, same-sex married couples may be able to collect overpaid taxes for the past three tax years. Some have rumored that the IRS will extend this typical statue of limitations to allow same-sex married couples to collect tax refunds even further back.

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