Much has already been written on the effects of the Marriage Equality Act1 since its passage on June 26, 2011, when New York became the fifth state to permit the solemnization of same-sex marriage along with the District of Columbia.2 As part of that discussion, matrimonial and other practitioners have commented widely on the remaining lack of equality which still exists for same-gender married couples owing to the lack of portability of same-sex marriage laws given that 41 states have statutes or constitutional amendments banning or refusing to recognize a marriage which is not of one man-one woman. Further, the federal Defense of Marriage Act (DOMA) eliminates well over 1,000 federal rights and benefits to these couples even though they are enjoyed by heterosexual marrieds. Given the foregoing, as newly wedded same-gender couples come to us for advice, new pitfalls arise to us as attorneys requiring us to alter our approach to retention and representation.

Representation of the same-gender spouse or spouse-to-be in a matrimonial matter presently remains different because the laws are different. The client may have expectations that it is the same and that since the enactment of the Marriage Equality Act, they have been imbued with all the rights and remedies of their opposite-sex counterparts. They must be advised at the initial consultation that until DOMA is repealed and interstate portability is ensured, there remain drastic differences.

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