Is Same-Sex Divorce Handled Differently from Other NY Divorces?

Before the U.S. Supreme Court declared same-sex marriage legal throughout the country in 2015, New York and 36 other states had already legalized such unions. These states legitimized these marriages either through legislation, court decision, or voter action.

New York’s 2011 Marriage Equality Act made the state only the sixth to legalize same-sex unions. The first gay marriages took place in July of that year. Married LGBTW+ couples can receive state tax benefits, insurance benefits from state-licensed insurance agencies, health care benefits, and a wide array of other legal rights.

The basic requirements to marry in the Empire State are the same no matter the gender of the would-be spouses. Likewise, same-sex divorce in New York is also the same in the eyes of the law.

Divorce Issues in Same-Sex Unions

New York is a no-fault state. Same-sex couples can initiate the divorce process by citing irreconcilable differences. Like any New York divorce, one of the spouses must have lived in the state for at least one year.

Like any divorce, couples must solve the following issues:

Family laws are gender-neutral. No particular gender is given an advantage in child custody, spousal support, and other divorce matters. Couples can use mediation, collaborative law, or litigation to reach a divorce resolution.

Unique Considerations in Same-Sex Divorce

When the federal Defense of Marriage Act (DOMA) defined marriage as only being between a man and a woman, marriage and divorce for same-sex couples in New York were complicated. For one, other states did not have to recognize the union. The non-biological parent had no legal relationship with the child of the biological parent in a same-sex couple. They could not petition for custody, visitation, or child support.

If a same-sex couple married in New York later moved to another state, their union would not be valid. If their relationship came to an end, they would not be able to divorce. Since DOMA was struck down through a 2013 and a 2015 U.S. Supreme Court ruling, same-sex couples can marry and divorce in all 50 states. LGBTQ+ and heterosexual couples enjoy the same benefits and privileges.

While state and federal law rightfully recognize gay unions, there are some specific challenges in same-sex divorce:

  • Asset and Debt Distribution: Many LGBTQ+ couples lived as married long before they were given the legal right to marry. This is an important argument in equitable distribution. Only property acquired after marriage is subject to distribution in heterosexual divorces. Determining what is truly joint property vs. separate property can be particularly complicated in these same-sex unions.
  • Spousal Support. Just like asset and debt distribution, spousal support is partly based on the length of the marriage. Spousal support can be awarded to up to 50% of the duration of the marriage for those unions lasting at least 20 years and up to 40% in marriages lasting between 15 and 20 years. An argument can be made for longer spousal support to incorporate the time the couple lived together as married before they were able to formalize the union.
  • Child Custody: Child custody can also be complicated, depending on when the child was born. A child born before same-sex marriage was legalized nationally may not be legally considered a child of the marriage. A non-biological parent would not have automatic rights in this case unless they had legally adopted the child. Today, both spouses are automatically considered legal parents when a child is born into a same-sex marriage. Recent legal decisions in New York provide a presumption of parental rights in surrogacy births, but the decision is not binding in all jurisdictions.

Ending an LGBTQ+ Marriage

If your LGBTQ+ marriage is over, consult with an attorney that has experience in same-sex unions and inherent complications in divorce. At the Law Office of Dennis R. Vetrano, Jr., LLC, we offer pragmatic counsel for all our divorce clients. We will listen attentively to your concerns, your goals, and how you want to move forward with your life.

Schedule a free consultation to discuss your potential divorce case. Call (845) 605-4330 or complete our online form.

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