...alimony in same- sex divorce


            Posted on June 15,2014       

            Wife entitled to alimony in same- sex divorce.


Q.   My wife and I, who are both pediatricians, have been together for 21 years. We have three kids, two born before and one after our 2003 marriage, a month after same- sex marriage became legal in Massachusetts.

In order to care for our youngest daughter, who has special needs, my wife and I agreed it was best for me to stay home to care for and  home-school her. 

While I still work some weekend on-call shifts, I earn very little compared to what my wife earns.

 I want to be able to continue to home-school our daughter until she finishes high school in what we'd hope will be 10 years.

We are talking about divorcing.  Can I get alimony?  If so, for how long?


            C.K., Hingham

A.        The US Supreme Court ruled that the Federal Defense of Marriage Act (DOMA) was unconstitutional. Now the IRS must equally treat alimony payments made by every ex-spouse to the other marital partner, whether that couple was in a heterosexual or same-sex marriage.  

 After same sex marriage became legal in Massachusetts, the IRS ruled there would be no favorable tax treatment for same-sex alimony payors who got divorced. So, once divorced, a same-sex alimony payer couldn't deduct alimony on his or her Federal income tax return. Even if those rulings haven't been rescinded, we think they're not enforceable because DOMA was ruled unconstitutional.

As for how long you're entitled to alimony, the applicable Massachusetts statute, M.G.L. chapter 208, section 48, defines length of marriage as "the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce."� And "the court may increase the length of the marriage if there is evidence that the parties' economic marital partnership began during their cohabitation period prior to the marriage."� 

 If the court believed your facts, for purposes of determining the length of alimony, that'd permit a finding that your economic partnership started when you started living together with your spouse, or, perhaps, on the date of birth of your first child.  So, if you can prove your economic relationship started 21 years ago, you're entitled to general term alimony for an indefinite number of years or until wife attains normal retirement age as defined by the Social Security Administration.  If not, Chapter 208, section 49(b)(3) provides you're entitled to alimony for 70 percent of your 11 years of legal marriage. 

You should know that the alimony reform act discourages people from thinking alimony will be paid indefinitely.  So you need to continue to work your on-call shifts and maintain your license in order to be able to return to full time work once your daughter no longer needs home schooling.

While eventually returning to work may reduce your alimony, you'll be able to provide yourself with a more secure long-term financial future.