This Week’s Blog by Jaime S. Dursht.
Same-sex divorce in Connecticut is governed by the same Family Law statutes as heterosexual divorce, however, there are particular issues that should be analyzed at the outset of the process to ensure a successful outcome. Connecticut legally recognized same-sex marriage in 2008, and since then there have been additional changes in both Federal and State law that have affected the application of Family Law in Connecticut. For example, in 2016, the Internal Revenue Service issued a ruling re-defining terms such as “spouse,” “husband and wife” and “marriage” to include individuals married to a person of the same sex if the individuals are lawfully married under state law. Because the divorce process involves asset division and transfers that are exempt from taxation if pursuant to divorce, applicability is particularly important because it is based on recognition of one’s legal marital status.
How is Jurisdiction of Same-Sex Divorce Determined in Connecticut?
Connecticut not only recognizes same-sex marriage, but will automatically merge civil unions that were entered into prior to the marriage (Conn. Gen. Stat. 46b-38qq). Connecticut will also recognize an out-of-state relationship as marriage if the jurisdiction of origin provides substantially the same rights, benefits and responsibilities as a marriage recognized in Connecticut (Conn. Gen. Stat. 46b-28a). This means that if an individual meets the residency requirements of living in Connecticut for at least 12 months prior to the filing of a divorce action, parties to a formal relationship originating in another state may divorce in Connecticut so long as the relationship criteria are met.
How are Custody and Parenting Plans in Same-Sex Divorce Handled in Connecticut?
An initial step for parties with children in any divorce is to determine the parenting arrangements. In same-sex divorce, custody and parenting plans can be established once the child(ren)’s legal parents are identified. This is because Connecticut statutes providing for parental rights and obligations of both custody and support extend and apply to legally recognized parents. For same-sex couples that may include confirming the existence of a surrogacy agreement, legal adoption and co-adoption, and spousal consent under the alternative reproductive technology law. A parent who is not legally recognized as such may assert custodial rights, but only through a third-party custody proceeding. In Connecticut, there is a marital presumption that a child born to a married woman is presumed to be the child of both individuals in the marriage. When Connecticut recognized same-sex marriages in 2008, the presumption extended to children born to individuals in same-sex marriages.
Once parentage is established, the same statutory criteria apply with respect to determining parenting plans in accordance with best interests of the children (Conn. Gen. Stat. § 46b-56) and with respect to the calculation and enforcement of child support (Conn. Gen. Stat. 46b-37).
What are Factors to Consider for Alimony and Asset Division in a Connecticut Same-Sex Divorce?
In Connecticut, one of the statutory factors that is considered in both the calculation of alimony and the equitable division of assets is “the length of the marriage.” (Conn. Gen. Stat. 46b-81 and 82). Since Connecticut legally recognizes same-sex marriages, it would seem to be a straightforward determination, however, some couples have been together far longer than Connecticut has recognized that legal relationship and want to include that time. Connecticut does not recognize cohabitation or common-law marriage, but Connecticut civil unions are automatically merged into marriages by operation of statute (Conn. Gen. Stat. § 46b-38rr(a)), and Connecticut will recognize legal relationships entered into outside of Connecticut as marriage as long as that relationship conferred similar legal rights and obligations benefits of marriage in the state of origin making it possible to include it in the length of the marriage.
What are Federal Tax Considerations for Same-Sex Divorce in Connecticut?
The Internal Revenue Service redefined its marital status terms in 2016 to include individuals married to another person of the same sex if the couple is lawfully married under state law. IRS Revenue Ruling 2013-17 specifically excludes domestic partnerships, civil unions and other formal relationships that are not recognized as marriage under state law. This is important for individuals in same-sex marriages and by extension, divorce, because not all individuals will be able to claim alimony payments as non-taxable income for example or characterize lump sum alimony as a non-taxable property distribution incident to divorce.
Broder & Orland LLC, with offices in Westport and Greenwich, concentrates in family law and divorce. Our attorneys are experienced with the unique issues faced by individuals in a same-sex divorce, and understand the evolving law with respect to both parenting and financial planning to achieve the desired results moving forward.