On July 24, 2011, the New York Marriage Equality Act was passed, making New York the sixth state to legalize and issue 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 all states, including the 13 that were still holdouts, to recognize same-sex marriages both in their own state and in others.
But for some couples, marriage was the easy part of the puzzle. Some of those couples who decided to divorce have discovered 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 common pitfalls in divorce court for same-sex unions.
If you are a same-sex couple facing challenges in the process of divorcing, it is essential to seek the guidance of experienced same-sex divorce lawyers. At Juan Luciano Divorce Lawyer, our New York same-sex divorce attorney, Juan Luciano, understands the challenges involved in same-sex divorce cases and can provide you with the support and representation you need. To learn more about how we can assist you with your same-sex divorce, contact us today at (212) 537-5859 to schedule a consultation.
How Does Same-Sex Divorce Work in New York?
Same-sex divorce in New York follows the same legal process as opposite-sex divorce. Couples must meet residency requirements and file a petition citing grounds such as irretrievable breakdown or fault-based reasons. Issues like asset division, alimony, and child custody are determined based on state laws.
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 is much like a traditional divorce, with the same laws and rules applying. When it comes to New York’s equitable distribution laws, marital assets will be divided equitably between the couple, just as in a traditional marriage.
However, marital assets are those acquired during the marriage, and equitable distribution is not necessarily 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, predating their official marriage, property and debt division can be more complicated in 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.
What Custody Issues Arise in Same-Sex Divorces?
Custody issues in same-sex divorces in New York focus on legal parentage and parental rights. If both partners are legal parents, courts decide custody based on the child’s best interests. Non-biological parents without legal adoption may face challenges in obtaining custody or visitation rights. Legal agreements and second-parent adoption help secure rights.
Parental Rights and Second-Parent Adoption in Same-Sex Divorce
In New York, same-sex couples face unique legal challenges during divorce, particularly regarding parental rights and the implications of second-parent adoption. Second-parent adoption is a legal process that allows a non-biological parent in a same-sex marriage to adopt their partner’s biological or adoptive child without removing any legal rights from the biological parent. This process secures the non-biological parent’s legal status and ensures that their rights remain intact in various scenarios, such as custody disputes following a divorce.
For same-sex couples, ensuring that both parents have legal rights to their children is crucial. If a child was adopted by the non-biological parent through second-parent adoption, both parents are treated equally under the law. This means that, in the event of a divorce, custody decisions are made based on the child’s best interests, and both parents are held to the same legal standards regarding child support, regardless of biological ties.
However, if the non-biological parent has not completed a second-parent adoption, they do not have legal custody or visitation rights. This situation can lead to significant emotional and financial challenges, particularly if the couple separates. The non-biological parent would not be obligated to provide child support, potentially placing a financial strain on the biological parent, who must then handle childcare costs alone.
For these reasons, same-sex couples are advised to consider second-parent adoption to fully protect their familial rights and provide legal security for both parents and children alike.
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.
| Topic | Same-Sex Divorce Considerations | Details |
|---|---|---|
| Marital Asset Division | Equitable distribution based on New York laws | Marital assets acquired during the marriage will be divided equitably between the couple, taking into account the length of marriage |
| Property and Debt Division | Complexities for long-term pre-marriage assets | Division of property and debt can be more challenging for couples who have been together for a long time before their official marriage |
| Child Custody | Complications in custody arrangements | Child custody can become complicated when only one party is the legal adoptive or biological parent, requiring court involvement |
| Non-Contested Divorce | Benefits of resolving issues outside the court | Couples who can negotiate and make decisions outside the courtroom are better off, and pre-nuptial/post-nuptial agreements can help |
Divorce Rates in Gay Marriage
While LGBT family law has granted benefits to same-sex couples, the process of divorce raises questions and considerations for gay couples. There are reports suggesting that same-sex couples experience higher levels of intimacy and happiness, resulting in a lower divorce rate compared to opposite-sex couples. However, studies indicate that despite this overall sense of happiness, same-sex couples do have a relatively high rate of separation. Research findings suggest that external factors such as family pressure, children, financial issues, and societal influences contribute to the higher breakup rate among gay couples.
Gay marriages have a high divorce rate due to their relative novelty. The attention and excitement surrounding the newfound opportunity to marry have led to a surge in same-sex marriages. It can be assumed that this statistic may change as the novelty of marriage diminishes and young, impulsive couples refrain from hasty weddings. On the other hand, data indicates that the divorce rate among gay marriages is 16%, while heterosexual couples have a divorce rate of 19%. Many studies have been conducted to understand the factors contributing to the 34% divorce rate among lesbian couples and the lower divorce rate among gay marriages, but as of yet, no definitive answers have been found.
If you’re looking to end your same-sex marriage, a New York same-sex divorce attorney can offer essential legal advice and assistance. At the Juan Luciano Divorce Lawyer, our experienced attorneys can provide guidance to address the specific challenges that may arise during the divorce process for gay couples. Contact us today at (212) 537-5859 to schedule a consultation and receive personalized support tailored to your circumstances.
