Common Issues in Same-Sex Divorces

Property Division & Child Custody in Same-Sex Divorces

June is Lesbian, Gay, Bisexual, and Transgender Pride Month, which commemorates the 1969 Stonewall riots and recognizes efforts to achieve equal justice and opportunities for LGBTQ individuals. While New York legalized same-sex marriages in 2011 and the US as a whole in 2015, marking a massive victory for LGBTQ communities, they still experience issues that heterosexual couples otherwise don’t.

With June being Pride Month, it is a good time to discuss some common issues that arise in same-sex divorces. The divorce process is generally the same for same-sex and heterosexual couples as well as the ambiguities they must resolve along the way, such as division of marital property, alimony, and child custody/support. However, same-sex spouses need to be aware of two particular matters in their divorce that could impact them differently compared to heterosexual spouses.

Below, we highlight property division and child custody in same-sex divorces, as these matters could play out a little differently than they would in divorces between heterosexual spouses.

Property Division in Same-Sex Divorces

New York is an equitable distribution state, meaning the court will divide marital property according to what is deemed fair, or “equitable.” Marital property is property that is acquired during a marriage, but what happens with property division if a same-sex couple had a domestic partnership before they were legally married? After all, they surely acquired property during their domestic partnership.

Remember, New York was one of the first states to legalize same-sex marriages, so if a same-sex couple in New York had a domestic partnership before getting legally married in 2011, the property division process can get confusing. Determining what is marital property in same-sex divorces is not as simple as it may sound. For example, if one partner bought a car after they became domestic partners but before they got legally married to the other partner, a battle over who gets the car could easily arise.

For these reasons, we encourage you and your spouse to explore mediation before litigating your divorce in court. This is because you could work out a more favorable property division agreement than you would in court, as same-sex divorce laws are fairly “new” in family courts. We welcome you to talk to our lawyer for more information.

Child Custody in Same-Sex Divorces

Same-sex couples usually choose to expand their families through adoption or surrogacy. With surrogacy, for instance, one partner may use their fertilized egg or sperm to have the child, establishing them as the biological parent. This leaves the other non-biological partner in the dark because they may lose custody rights over their child. As such, the noncustodial partner may have to pay child support and even lose their visitation rights depending on the circumstances.

If this doesn’t sound ambiguous and complicated enough, same-sex couples who adopted their child may experience more significant hurdles in arranging their child custody, support, and visitation matters because neither partner is biologically related to the child.

Again, these complications can mainly be attributed to outdated court systems and procedures. Same-sex marriages and divorces are relatively new areas of law, and the court system hasn’t quite “caught up” yet. Luckily, a lawyer can help alleviate some of the burdens faced in same-sex divorces.

Proudly Advocating for Same-Sex Couples in Divorce

The Law Office of Dennis R. Vetrano, Jr., LLC proudly supports our LGBTQ communities and champions their best interests at every step of the process in their divorce. Our seasoned family attorneys in Putnam County are knowledgeable on the laws and challenges affecting same-sex spouses in New York, which is why we work tirelessly to help minimize the negative impacts while working to maximize the chances of getting a favorable outcome.

While the divorce process is generally the same for heterosexual and same-sex couples, we understand that same-sex couples face certain obstacles that an attorney can help them overcome.

Allow us to help make your life a little easier as you navigate this difficult time in your life. Get in touch with us online or at (845) 605-4330 to schedule a consultation!

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