Ordinarily, marital dissolution involves too much hostility and distrust for couples to co-manage a family business following divorce. Occasionally, however, divorcing parties believe that it is in their best financial interest to jointly manage and control a family business post divorce. Read more about this in a recent NYT article: Read more about this here.
The U.S. Supreme Court will soon determine the constitutionality of the 1996 Defense of Marriage ACT (DOMA) which defines marriage as a union between a man and a woman. DOMA prevents same-sex marriage couples and same-sex registered domestic partners from sharing any federally granted rights and protections that are guaranteed by law for opposite sex married persons (e.g. the ability to file joint federal tax returns, derivative social security benefits for surviving spouses, COBRA health insurance benefits for divorced spouses, 1041 tax-free property transfers between spouses, deductability of spousal support for divorced spouses etc., etc.).
California has its own version of DOMA, but its version is embedded in the California’s State Constitution. In 2008, California voters passed Prop 8 which amended the State’s Constitution to restrict marriage only to persons of the opposite sex. In 2010, a U.S. District Court overturned Proposition 8 and in 2012 the 9th Circuit of Appeals affirmed the District Court’s decision (Perry v. Schwarzenegger). This case is now on its way to the U.S. Supreme Court, as is a companion case that addresses the separate but related issue of whether DOMA is unconstitutional as a violation of equal protection. A decision on both cases is expected by June 2013. In the meantime, same-sex couples in California remain unable to be legally married in this state.
It is important that same-sex couples who married prior to the passage of California’s Proposition 8 consider the potentially significant tax consequences that may result if the U.S. Supreme Court determines that DOMA is unconstitutional. Those same-sex couples who are currently married may benefit by filing their tax returns before the U.S. Supreme Court announces its decision.
The U.S. Supreme Court’s order granting cert can be found here.