Things to Consider in New York Same-Sex Divorces

On July 24, 2011, same-sex marriage in New York was legalized, granting same-sex couples the same rights as heterosexual couples regarding marriage, divorce, spousal support, and dept and propery division. Additionally, New York laws acknowledge same-sex marriages for couples from other states that recognize same-sex marriages. 

In New York, several factors are considered for a same-sex couple going through a divorce: 

‍Marriage Length: Opposite-sex divorce cases involve the equitable distribution of spousal maintenance, child support, and custody. Same-sex marriages are no different. However, particular issues in a heterosexual divorce case are not considered in same-sex marriage divorce cases.

‍Property Division and Spousal Maintenance: The longer the marriage, the more the amount of property there is to be distributed. Every case is different, so it may not take long for the eligible spouse to receive spousal support since it's easy to determine the duration of the marriage.

Same-sex couples could have spent years together before formalizing their union. Typically, this means they've lived, bought properties, had children, and made critical financial decisions together for many years without a marriage license. In a divorce case where the judge considers only the duration they were legally married, coping with the aftermath of the divorce may be difficult for either or both parties.

How Funds are Distributed 

The duration of the marriage dictates how assets should be distributed or whether spousal support and maintenance should be granted. For instance, if a same-sex couple lived together for ten years before getting married five years ago, it is unclear whether the relationship duration should be 15 or five years.

Marriage Duration and Spousal Maintenance

The decision on how long a spouse can receive maintenance is based on the length of the relationship. Generally, a judge will follow a guide to determine spousal maintenance:

• In marriages that last up to 15 years, spousal support may be offered for up to five years.
• If the marriage lasted for two years, a spouse could receive up to 8 years of spousal maintenance.
• For marriages lasting more than 20 years, the eligible spouse can receive maintenance for up to half the marriage duration.

Apart from marriage length, other factors like standard of living, financial obligation, and each spouse's income also come into play when deciding whether or not to award spousal support.

Marriage Duration and Marital Property

Property acquired before the marriage is typically considered separate property. This property should remain with the spouse who acquired it and is not subject to distribution in a divorce case. Marital property refers to the assets acquired during the union and can be split in case of a divorce.

As many couples lived together before same-sex marriage was legal, it can be complicated to distinguish between separate and marital property. The couples might have a lot of joint assets, and purchases were acquired before the legalization of same-sex marriage.

Child Custody

In a same-sex marriage, the presumption of motherly or fatherly roles and responsibilities is blurred. Unless there were prior arrangements or set parentage rights, things can be a lot messier if the two partners contest for full custody.

Collaboration and mediation is the best way to address these types of disputes instead of moving to court. In most cases, the judge may fail to understand the differences you and your partner have, specifically when it comes to parenting and custody.

Mediation with the help of a New York same-sex family law attorney can help determine what's best for the kids' interests. Whether it will mean favoring one spouse or you agree on shared custody, mediation can create room for achieving the best outcome in circumstances where gender differences can't play a role in determining the case's outcome.

A Comparison Between a Heterosexual and Same Sex Divorce Case

Let's focus on two couples; same-sex and heterosexual. Assume they both started dating in 2002. The same-sex couple started cohabiting in 2004, while the opposite-sex couple started living together during the same year. The same-sex couple married in 2011 after the legalization of same-sex marriages. Both couples invested and bought assets together throughout their union.

If these two couples decide to divorce in 2022, the judge will decide based on the fact that the opposite-sex couple has been married for 18 years. In a same-sex divorce case, the judge can disregard the years the couple cohabited before they got formally married. This means that there will be a reduction in resources distributed during the same-sex divorce case.

How A New York Same-Sex Family Attorney Can Help

From determining the actual length of the relationship to determining marital or separate property, you need to work with an attorney who understands same-sex couples' challenges and differences. At WertheimerLipton, we have helped same-sex couples address divorce, property distribution, and child custody issues. We are ready to assist you and your ex-partner navigate the hurdles that can hinder you from having a peaceful resolution.

Contact Us Today to Schedule a Consultation

The New York same-sex family attorneys at WertheimerLipton understand that your divorce is already stressful. They will take the time to listen to your concerns and offer the legal support you need to address the specific issues affecting your divorce case. 

Our role is to protect your interests, and we promise to do that diligently. Contact us today to discuss your potential divorce case with a New York Same-sex divorce attorney.