New York same-sex family law attorney

Same-sex divorces and other family law issues are often complex - just as they are for heterosexual couples. At WertheimerLipton, we recognize that issues such as divorce, child custody, the equitable distribution of property, and spousal maintenance are not easy to navigate. Even when both partners are in agreement on the big picture issues, there are so many small details that can have life-long implications.

As New York family law attorneys, we work with same-sex couples to resolve their family law issues as amicably as possible. However, if an amicable resolution cannot be achieved, we never hesitate to fight for our clients in and out of the courtroom.

Divorce for same-sex couples in New York

On July 24, 2011, same-sex marriage became legal in the state of New York. Prior to that date, same sex marriages that were entered into in another state were recognized under the Full Faith and Credit Clause of the U.S. Constitution. In order to seek a divorce, these couples would need to meet the residency requirements for a New York divorce.

To file for divorce in New York, at least one partner must have been a resident of the state for at least one year, and the parties must have been married in New York State, resided in New York State together, or the cause of action must have occurred in New York State, or both parties lived in New York State for two years prior to filing.

New York is a no-fault state. This means that same-sex couples are able to seek a divorce by citing irreconcilable breakdown of the marriage for a period of 6 months. In some cases, individuals may also file for a fault- based divorce, alleging that the other spouse is to blame for the failure of the marriage.

Although same-sex marriage is legal in New York today, there are still many questions about how divorces should proceed. Typically, any issues which exist in a heterosexual divorce will also exist in a same-sex divorce. These issues may include questions of child custody, child support, distribution of marital property, and spousal maintenance.

Property distribution for same-sex couples

In New York, marital property is divided at the court’s discretion in a manner that is deemed fair. Fair does not mean equal, however. The presiding judge will look at factors such as each partner’s earning potential, the ages of each partner, and the health of each partner when determining how property will be divided.

The division of martial property continues to be a sticking point for same sex marriages, which is why it is important to speak with an experienced New York family law attorney.

Child custody for same-sex parents in New York

A common issue that frequently arises in same-sex family law cases is child custody. A child custody order sets forth which parent is responsible for a child’s care. The determination is based on the best interest of the child, however, these orders can change until the child is 18 years of age. If a custody order does not exist, then both parents have equal rights to legal custody and physical custody of the child.

We understand that no couple wants to fight over the custody of their children. However, when same-sex parents are unable to come to an agreement about joint custody and visitation, it may be time for legal intervention. Should that be the case for you, we encourage you to contact a New York family lawyer to discuss your specific case.

Child support for same-sex couples in New York

In addition to child custody, child support payments are another important issue that must be ironed our during a same-sex couple divorce. In New York, same-sex parents are legally obligated to provide financial support for their children. This obligation exists until the child or children reach the age of 21, or until they are legally emancipated. 

One parent will be required to pay for child support, however, this payment may not be equal or proportional to the split in child custody. In fact, child support may be ordered regardless of whether a parent has any custody or contact with the child. In situations in which custody is split evenly, the parent with a higher income will pay child support to the parent with lower income. When custody is not split evenly, the non-primary custodial parent will make payments to the primary custodial parent.

Divorce mediation for same-sex couples

The thought of divorce is anxiety inducing for any couple - regardless of sexual orientation. There can be tremendous costs to the financial and emotional well being of both individuals involved. For couples looking to avoid the courtroom, there is another option: mediation.

Mediation provides an alternative to court whereby divorcing same-sex couples can work together to resolve the financial and practical issues that they face. In mediation, same-sex partners will work with an impartial mediator to make decisions about child support, property distribution, and spousal maintenance. Once all of these issues have been decided upon and fully resolved, a New York family law attorney will create what is called a separation agreement. This agreement is a binding contract, and it will be filed in court and included in the divorce decree.

Hiring a same-sex family law attorney in New York

At WertheimerLipton, we have worked with both heterosexual and homosexual couples to navigate the emotional and procedural complexities of divorce, child custody, child support, and spousal maintenance. If you have questions about getting divorced in New York, please contact our family lawyers today to schedule a free consultation.