David Horton, attorney and enrolled IRS agent, Law offices J.M. McQuigg
James Davis, attorney, law offices of James Davis
Koren Boyd of Boyd Law Firm
BY IAN MYLCHREEST -- Gays and lesbians will have to decide whether they are romantic or pragmatic, Las Vegas Family Law Attorney Koren Boyd says. Romantics should head to California right away. Same-sex marriage is now legal there. “If you’re a pragmatist,” she added, “You might want a wait a little bit and see exactly how the federal government is going to treat your marriage.”
The recent Supreme Court decisions have effectively legalized same-sex marriage in the Golden State but that does not do much for Nevadans because state law here defines marriage as between one man and one woman. The federal Defense of Marriage Act was struck down but the IRS is still working out how it will treat same-sex couples for purposes of federal income tax. Simply marrying will not guarantee that couples can file joint returns, so it’s probably better to wait.
But many people won’t wait because they have a psychological or emotional need to formalize their marriage, said Attorney David Horton, even though they had long considered themselves married without formal legal marriage. He’s worried that people will think marriage resolves all legal and financial issues. In fact, he noted, some kind of planning on taxes and property is best for all couples.
“We don’t yet know how many federal laws are going to apply to same-sex couples who are married in one state but are living in a non-recognition state,” said Boyd. All that is certain at the moment is that the federal government will extend employee benefits to all married couples no matter what state they live in. Foreign nationals married to Americans can also apply for green cards.
Same-sex couples who marry but move to a state that does not recognize their marriage and then want to divorce face real problems. “We call it wedlocked,” said Boyd. Those couples can marry easily in some states but Nevada courts have not decided whether they will recognize out-of-state marriages in order to grant a divorce to same-sex couples.
But those couples cannot easily get a divorce in the same state they were married because states require people to be residents before they can file for divorce. “If Nevada courts decide they’re not going to recognize your marriage to divorce you, then you’re stuck in that marriage.” Eventually, said Horton, the legal system will iron out these problems as same-sex marriage becomes more like heterosexual marriage.