New York is one of the ten jurisdictions in the country that currently allow same sex marriage.  The other jurisdictions are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, Vermont, Washington, and the District of Columbia.  It seems very likely that this list will continue to grow in the future. 

In March, the U.S. Supreme will hear a case on Proposition 8 from California that outlawed same sex marriage. The Supreme Court will have the opportunity to make a broad ruling whether same sex marriage is allowed under the constitution or not.  The Supreme Court could instead make a narrower decision based upon the facts of the case.  Finally, the Court could take a middle-of-the-road position by ruling that this is a matter of states’ rights and leave it to the individual states to decide whether same sex divorce should be allowed in each state. 

The Supreme Court has an opportunity here to state that same sex marriage is a constitutional right.  Any other decision would be a mistake.  This is as an equal protection issue.  To ban same sex marriage would require the Court to explain why a same sex couple should be treated differently from a heterosexual couple.  However, a credible argument cannot be made why a same sex couple should be treated differently under the law.  In addition, since same sex marriage is legal in a growing list of jurisdictions, the equal protection of the law does not permit treating same sex couples differently depending upon the jurisdiction in which they reside.  The constitution requires each state to give full faith and credit to the laws and judgments of every other state. 

Although New York and other jurisdictions in the United States allow same sex divorce under the federal “Defense of Marriage Act” (DOMA), same sex couples do not have the same rights as heterosexual couples.  Under DOMA, same sex couples are not recognized by the federal government and do not receive federal benefits.  This is true even though the current administration has a policy of not suing to enforce DOMA.

DOMA deprives same sex couples of significant financial rights under the U.S. Tax Code.  In March of this year, the U.S. Supreme Court will hear another case on this issue out of New York.  Hopefully, the Supreme Court will rule that DOMA is unconstitutional. 

Even before New York legalized same sex marriage in 2011, New York allowed same sex divorce.  If a same sex couple was legally married in a jurisdiction that allowed it, including another country, New York allowed a divorce to be granted if at least one member of the couple met the usual jurisdictional requirements.  In contrast, some states refuse to grant a same sex divorce to a couple that was legally married in a jurisdiction that allowed same sex marriage.  In such a situation, the same sex couple cannot divorce unless at least one of them moves to New York or to another state that allows same sex divorce. 

A same sex couple that divorces must consider the consequences of DOMA in making a settlement.  Hopefully, this will no longer be an issue in the near future. However, until then, it must be kept in mind when a same sex couple divorces. 

This is a fast developing area of the law.  No doubt 2013 will bring major new developments.