How Is Property Divided in a Same-Sex Divorce Case?

In most divorce cases, marital property is distributed equitably between the couples. This also applies to same-sex couples. However, same-sex divorces can pose unique challenges, especially if a couple was married prior to the legalization of same-sex marriages in New York.

Distribution of property during divorce

In a divorce, marital assets and debts are divided between the spouses. Couples must disclose financial information to each other and the court. All the property acquired during the marriage should be evaluated and classified as separate or marital. Separate property includes:

• Property brought into the marriage
• Gifts and inheritances acquired during the marriage
• Personal injury settlements or liabilities during the marriage

Separate property and debts are immune from distribution and are awarded to parties who own them. However, the marital assets and debts are divided between the two parties. The judge will use discretion to ensure that the property and debts are distributed fairly but not necessarily equally. In determining the share of the marital property, the judge might consider the following:

• The age, health, and marriage duration of the spouses
• Their income during the marriage
• Whether alimony will be awarded
• The liquidity of the property
• The projected financial position of each party
• The projected tax consequences due to the divorce
• Whether one of the spouses squandered the marital property

Same-sex marriage legalization and divorce

When determining how property is divided in a same-sex divorce, the timing of the marriage is critical to determining what is and what is not considered marital property. 

The United States Supreme Court legalized same-sex marriage in 2015. However, same-sex marriage was legalized in New York in 2011, and has been recognized by state courts since 2008.

Property and debt distribution can become a challenge for same-sex couples if they cohabited before marriage legalization, for example.

Need a same-sex divorce attorney in manhattan?

Generally, same-sex divorce processes can be stressful and messy, especially if couples decide to settle their cases in court. At WertheimerLipton, our Manhattan same-sex divorce attorneys have extensive experience helping same-sex couples resolve their divorce cases with minimal hostility. Please get in touch with us today to seek our professional legal assistance.