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Things can get tricky when same-sex marriages break up

Boston attorney Peter Zupcofska has become known as the master of gay divorce.
Boston attorney Peter Zupcofska has become known as the master of gay divorce. Jay Reiter / MCT

BOSTON — Sometimes the joy of same-sex marriage is followed by the pain of divorce, but Peter Zupcofska is there to help.

In Boston, he's become known as "the master of gay divorce." For a $25,000 retainer, he can lead couples through the intricacies of how best to break up. Zupcofska said divorces presented gay couples with a new opportunity "to make things right" when a relationship ended.

"Divorce is a critical part of marriage," he said.

Gay divorces are bringing many new wrinkles to the field of family law, raising questions that are sure to be litigated for years. While no one tracks how many same-sex couples have divorced in Massachusetts, lawyers in the Boston area are competing for cases in the budding cottage industry.

The cases are complicated because of vast differences in state and federal law. In short, federal law trumps state law and can eliminate benefits that a state might want to extend.

Tax issues are a good example.

The Internal Revenue Service Gay doesn't recognize same-sex marriages, which means that spouses can't take advantage of federal tax breaks, including the basic deduction for a dependent.

Gay spouses are eligible for alimony and child support, but such payments can't be deducted from federal taxes. Gay spouses must file federal tax returns as individuals, and only one of them can claim a child as a dependent.

If a couple splits and one spouse wants to transfer a house to the other, it can result in a higher federal tax, which wouldn't apply to divorcing heterosexual couples.

Pension issues also get messy.

Because Massachusetts recognizes gay marriages, state workers can get their spouses covered by their pensions. But gay federal employees aren't eligible for Social Security under their partners' plans, as heterosexual couples are. Any other retirement plan governed by federal law doesn't have to recognize a same-sex spouse.

Zupcofska, who's gay and married, doesn't like to leave things to chance: He has a prenuptial agreement, and he advises his clients to do the same.

Zupcofska said the poorer spouse could suffer when a marriage broke up if the issues weren't ironed out in advance. Without a prenuptial agreement, he said, the primary breadwinner can walk away with more money in his or her pocket, even if it's been a relationship of 20 years or more.

Courts also will have to address the rights of parents and who's responsible for raising children.

For example, if two gays are married and both are recognized as the parents of a child in Massachusetts, that won't necessarily apply in a state that doesn't recognize gay marriage. Zupcofska said that raised questions regarding who'd be legally liable for child support or what would happen if children inherited money from their grandparents: Can someone be a grandchild in one state and not in another?

Getting divorced also can be tricky.

Two lesbians who married in Massachusetts moved to Rhode Island and tried to divorce there, but the Rhode Island Supreme Court wouldn't allow it because the state defines marriage as a union between one man and one woman. One of the women had to move back to Massachusetts to establish residency and qualify for a divorce.

Lisa Cukier, another Boston lawyer who handles divorce cases, said that legal issues stemming from gay divorces were being handled on a case-by-case basis. She predicted that a gay rights group will challenge the federal law against gay marriage at some point and the Supreme Court will be forced to resolve the differences.

However, Joyce Kauffman, a Cambridge lawyer who represents divorcing gays and lesbians, said that most same-sex activists thought that now wasn't the time to try to get a gay marriage case before the nation's highest court. Many activists hope that their chances will improve if Illinois Democratic Sen. Barack Obama wins the presidency and appoints more liberal justices, who might view gay marriage more favorably.

In the meantime, Cukier said, gays and lesbians who marry must be vigilant to protect their rights.

"When people get married now, they are lulled into the belief that the rights that their straight neighbors have are going to carry over to them, as if marriage somehow magically eliminates the discrimination in the law," Cukier said.

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