What Are the Legal Considerations for Same-Sex Divorce?

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Thirty-six states had recognized same-sex marriage before the landmark Supreme Court case Obergefell v. Hodges, 576 U.S. 644 (2015) made it nationwide law. New York was among those states, in order the sixth state to recognize same-sex marriage with its 2011 Marriage Equality Act. Since then, married LGBTIA+ couples in New York have been eligible for state tax benefits, insurance benefits, and health care benefits, among others. Many family law requirements are the same in same-sex as in opposite-sex divorce, though same-sex marriages do face some unique hurdles. This blog will help you understand the similarities and differences. For tailored, compassionate legal advice, don’t hesitate to contact a Suffolk County LGBTQ family law lawyer.

Same-Sex Divorce Considerations that Parallel Opposite-Sex Divorce Issues

New York is a no-fault divorce state, which means that while you can get a fault divorce which alleges inappropriate behavior on the part of your spouse as the reason for the separation, you also have the option of a no-fault divorce where both exes claim irreconciliable differences. To qualify for either kind of divorce in New York, at least one spouse must have lived in the state for a minimum of one year. All of this is just as true for same-sex couples as opposite-sex ones.

Similarly, same-sex couples must settle the issues as opposite-sex couples. You will need to agree on property and debt division, child custody, child support, and spousal support. Family law is gender neutral, and no gender should have an advantage in these discussions. Same-sex couples may use mediation, collaborative law, or litigation in the negotiation process.

Same-Sex Divorce Considerations that Differ from Opposite-Sex Divorce Issues

The specifc history of gay rights, though in recent years more triumphant than ever before despite the relentless assault by certain political groups, presents some of the bigger differences between same-sex and opposite-sex married couples. Before Obergefell v. Hodges, federal legislation called Defense of Marraige Act (DOMA) interpreted marriage as between a man and a woman. Consequently, though New York recognized same-sex couples since 2011, many other states would not acknowledge these unions. Hence, benefits that spouses were usually entitled to, such as spousal support in a divorce, were effectively denied to same-sex spouses.

Similarly, in the view of these states, when one spouse was the biological parent of a child in a same-sex couple, the non-biological parent had no such relationship with the child. They would have no right to request custody, visitation, or child support.

Post-Obergefell, LGBTQIA+ couples are supposed to have the same rights, benefits, and privileges as opposite-sex couples, but unique complications remain.

For instance, there are numerous LGBTQIA+ couples that lived as married before their legal right to marriage was recognized, and this is relevant to property division during divorce. In opposite-sex marriages, property obtained after marriage is subject to division negotiations. This makes the process of distinguishing between separate and joint property more involved when it comes to same-sex marriages.

Spousal support, too, takes into consideration the length of the marriage, and therefore is subject to some of the same complications. In New York, spousal support can be awarded for 50% of how long the marriage lasted when a marriage lasted at least 20 years. Given the recent recognition of same-sex marriage, many LGBTQIA+ couples find it important to argue that the time they lived together prior to legally cognized marriage should also be considered.

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