DOMA and fed vs. state filing status

It's not just tax departments.

The question of when one state recognizes a marriage in another state is one with a lot of history and case law. There are significant variations between states about minimum ages and degree of consanguinity. There used to be more variations related to miscegenation until Loving vs. Virginia outlawed race as a criterion for marriage. (The Lovings lived in Virginia, were married in D.C., and were convicted of miscegenation in Virginia.)

This will doubtless end up back in the Supreme Court, but it's hard to predict how it would rule. If I had to guess, I'd say that they would strike down sec 2 as an overreach, but not require states to recognize same sex marriages.

If that "one man and one woman" part of the Act is unconstitutional, I can hardly imagine that anyone would seriously contest that states have to give full faith and credit to marriages that are valid in other states. States have always had to do that in all other cases, so I can't see why this situation would be any different from a legal standpoint.

I saw a brief comment from another discussion group that referred back to the issue of common law marriages, and how the IRS dealt with that.

Quote:

Then some> I believe the IRS has a general practice of

The alternative to "place of domicile" is "place of celebration" (of the marriage).

No, they haven't. As I noted about the Loving case, the Lovings were legally married in D.C. but nonetheless were convicted miscegenation in Virginia. I believe you'll find lots of situations where states don't recognize some marriages, e.g., Mass General Laws 207:10

If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.

Fun fact: in Massachusetts a man cannot marry his wife's mother or grandmother, nor can a woman marry her husband's father or grandfather, notwithstanding the dissolution, by death or divorce, of the marriage by which the affinity was created. Yet a man can marry his son's wife although a woman cannot marry her daughter's husband. (MGL 207:1-3)

[ note followup since these relatives are no longer is related to taxes ]

...

Yeah, but, Virginia lost the Loving case.

Also, I would like to know, practically speaking, how a man can marry his son's wife when that wife is prohibited from marrying her husband's father.

I was wondering the same thing. Maybe it just indicates who can be prosecuted if the marriage occurs. Or maybe the legislature just didn't do all the math.

That's not just the IRS rule, but it's the law based on the constitution's privileges and immunities clause. Every state, even those that don't provide for common law marriages, recognize common law marriages that are valid in the state where the marriage was created.

Why should it be different for gay marriages?

It is different. Article 4 Section 1 of the US Constitution contains the full faith and credit clause. See below. The USSC has consistently ruled that this clause is only applicable without exception to judgements of a state court. The USSC has carved out an exception for laws passed by another state. That exception is when the law goes against the public policy of the other state. Most of the states have laws that say marriage is only between two individuals of the opposite sex AND that marriages performed in other states between same-sex individuals go against public policy and will not be recognized. So until the USSC decides in some other case to either change their minds about the public policy exception or they decide that these laws are invalid under some other clause of the US Constitution, most of the states will be free to disregard same-sex marriages until sucg time that they change their law. An example of the USSC using another clause to invalidate state laws was the Loving vs Virginia case cited by Mr. Levine. Note that the USSC had nothing to say about Article 4 in this decision. The USSC declared that all anti-miscegenation laws were unconstitutional under Section 1 of the 14th Amendement (due process and equal protection clauses). See below. ================================================================ARTICLE IV

SECTION 1.

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. ================================================================AMENDMENT XIV

SECTION 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Hey, I'm just the messenger. Those of you who live in Massachusetts can alert your elected representatives that the Mass. code has some editing errors. (Or maybe just get rid of all that nonsense, and replace it with something simpler like we have in N.Y.)

The point remains that there is a long history of states not recognizing marriages that are contrary to state policy, so it is not at all obvious how a court would rule. And given that there are a lot of states that have passed laws specifically saying that they won't recognize gay marriages from elsewhere, court is where it will end up.

R's, John

CCH has released its briefing on the implications of the USSC Windsor decision.

So if two same-sex people get married in NY, they file MFJ for federal and state. If they move to some state which does not recognize same-sex marriage, then: (1) do they become divorced and must FS (file single) again, or (2) they file MFJ for federal but FS for state.

(2) has a logical problem because if two same-sex people live in a state does not recognize same-sex marriage, then they get a marriage license in another state (say a destination wedding to a state or country that allows same-sex marriage), then in their own state they are not recognized as married. So for federal they must file as single FS, and for state as well -- which is a difference with the above where is they were a resident of the state that recognizes same-sex marriage, then the federal government would recognize it.

For some reason this reminds me of Dredd Scott.

What does the above mean in plain English? I have no idea what "full faith and credit" means.

On a related issue, per wiki

"The first laws in modern times enabling same-sex marriage were enacted during the first decade of the 21st century. As of May 2013, thirteen countries (Argentina, ... Sweden), ... allow same-sex couples to marry."

So one question is when a SSMC from one of those countries moves to US tax jurisdiction, how has this been treated by the IRS in the past and will this change anything?

Jay Wiedwald

Not divorced, more like annulled.

Surely this issue has come up before. Two first cousins marry in New Jersey where it's legal, then move to Delaware where cousin marriage is "prohibited and void". Now what?

On 6/27/13 12:16 PM, Alan wrote: The USSC has consistently

I have since learned that the courts have carved out a few policy exceptions relating to judgements. From the Heritage Guide To The Constitution:

The Court has recognized a few relatively narrow policy-based exceptions to the states' obligations to enforce the judgments of other states' courts. First, a defendant who did not appear in the first proceeding can collaterally attack a judgment against him on the grounds that the first state's courts lacked personal jurisdiction over the defendant. Second, states are not permitted directly to affect land titles in other states by, for example, issuing a deed to land located in another state. Third, judgments based on purely penal claims (i.e., criminal or administrative fines) need not be enforced by other states. To fall into this penal exception, the judgment must be for the purpose of punishment rather than compensation, and the recovery must be in favor of the state, not a private individual. But tax judgments, judgments for punitive damages in favor of private plaintiffs, and compensatory tort judgments in favor of the state all fail to qualify for this penal exception. Fourth, states can apply their own evidentiary rules. For example, the enforcing state may accept testimony that would have been illegal under the rendering state's law. Finally, if a state court issues a divorce decree in an ex parte proceeding (where only one spouse appears), the absent spouse can collaterally attack the validity of the present spouse's domicile within the rendering state.

No one knows the answer to a myriad of issues regarding taxes, eligibility for federal benefits, and employer/employee benefits under a whole a slew of different scenarios. E.g., foreign marriages, marry in a recognition state while domiciled in a nonrecognition state, marry in a recognition state and relocate to a nonrecognition state, marry in a recognition state and relocate to a nonrecognition state and want to get divorced, marry in a recognition state and split apart without a divorce and one individual relocates to a nonrecognition state, and ad infinitum.....

Lots of explanations on the Web.... here's a good one:

It means that they have to accept those things as real and correct.

Some people have claimed that marriage isn't covered in that list. But suppose there's a court case about it, and a court rules that a couple is married. That particular marriage then would be covered.

Seth

Maybe, maybe not. There is a whole lot of history about the various state definitions of marriage, and whether one state will accept other state marriages of people who are closely related or, until Loving, of different races.

The only thing we can say for sure is that it'll be some interesting court cases.

Since the SCOTUS opinion talks about SSM not applying when the state has a specific law against it, what happens if there is no guidance from the state? Yet another wrinkle to be ironed out. This is another one of those that really should be titled "The Attorney Full Employment Law",

Because gay sex is icky.