On July 24, 2011, the New York Marriage Equality Act passed, making New York the sixth state legalizing and issuing marriage licenses for same-sex couples. The U.S. Supreme Court’s decision to legalize same-gender marriages came shortly thereafter in June of 2013, and, in 2015, Obergefell v. Hodges required that all states, even the 13 that were still holdouts, recognize same-sex marriages both in their own state as well as others.
But for some couples, the marriage was the easy part of the puzzle. Some of those couples who have decided to divorce have discovered that there are some hurdles to same-sex divorce that they hadn’t anticipated. Despite having the same legal rights as traditional marriages, same-sex divorce lawyers are seeing some common pitfalls when it comes to the divorce court for same-sex unions.
The Same Yet Different
When same-sex partners marry legally in New York or other states, a divorce is handled much the way as any other traditional divorce. Same-gender partners can seek either a contested or uncontested divorce in the state of New York under our laws. The same laws come into play regarding asset and debt division, child custody and support, and spousal support as traditional divorces. But because these unions were only recently legally recognized, many couples whose relationships spanned years prior to their official legal marriage may find that asset division and child custody will be more complicated should they choose to divorce.
Same-Sex Couples and Marital Asset Division
Same-sex divorce looks much like a traditional divorce with the same laws and rules applying. When it comes to New York’s equitable distributions laws, marital assets will be divided equitably between the couple, the same as a traditional marriage.
But marital assets are those that are acquired during the marriage. And equitable distribution is not equal but considers many factors, one of which is the length of the marriage. Consequently, for couples who have been together for a long time, pre-dating their official marriage, property, and debt division can be more tricky with same-sex divorces.
Child Custody and Same-Sex Divorce
The same complications can hold true when it comes to child custody. Typically, before same-sex marriage became legal, only one party was the legal adoptive parent of a child, even though there was an existing same-sex relationship. The same could hold true if there was a surrogate involved and when one party is the biological parent. When a couple seeks a divorce, custody arrangements can become complicated if the matter goes to court.
Non-Contested Divorce and Mediation in Same-Sex Marriages
We always believe that when a couple can come together to make or negotiate decisions outside the courtroom, they are much better off than those who end up litigating and handing over their power to the courts. Also, having a well-crafted pre-nuptial or post-nuptial agreement drafted can fend off many of these issues should a divorce become necessary.