Can you File For Same-Sex Divorce in New York?
In 2011, New York legalized same-sex marriage and has since provided same-sex couples with the same rights to marriage and divorce as heterosexual couples.
Note that any couple filing for divorce must meet the residency requirement:
- Either spouse must have lived in the state for at least 2 years prior to filing;
- Either spouse has been living in the state continuously for at least 1 year before the divorce is started and the couple got married in New York, Lived in New York as a married couple, or the grounds for the divorce happened in New York;
- Both spouses are residents of the state on the day the divorce begins and the grounds for the divorce happened in New York.
Some examples of grounds for same-sex divorce include irretrievable breakdown of the marriage, cruel and inhumane treatment, abandonment, imprisonment, adultery.
Note that as with any divorce, important disputes that divorce will need to negotiate include:
All the above divorce issues are governed by the same laws for heterosexual couples. Our attorneys can take a look at your specific divorce and help you and your spouse reach a favorable agreement on the relevant matters, such as for any adopted children between you and your spouse and how you might negotiate your asset and debt division.
Our firm also practice in all 3 processes for obtaining divorce – mediation, collaborative law, and litigation – so clients can feel confident that they have a wealth of options to settle their divorce needs. In partnerships that are still amicable, we can guide same-sex couples through negotiation of their disputes in mediation or collaborative law, and if it doesn’t work out we can settle the matters in litigation.
How do Same-Sex Prenupital Agreements Work?
Like any couple looking to marry, same-sex couples may seek security for their marriage in the form of a prenuptial agreement. Prenups are legally binding agreements that can help resolve issues that would otherwise be decided by a judge in the case of a divorce.
For example, a prenuptial might address:
- Each spouse's right to property;
- The distribution of assets and debts during marriage or in the event of death or divorce;
- Each spouse's right to buy, lease, sell, transfer, or otherwise control property;
- Each spouse's rights in and management of a family business;
- Each spouse's right to alimony;
- Each spouse's entitlement to death benefits from the other's life insurance policy;
- The state law which governs the agreement;
- Any other issue the couple wants to address.
Be aware that a prenuptial cannot decide things like child custody and child support, as these decisions depend on the child’s best interests and so cannot be determined before the child even comes into the picture.
Common LGBTQ+ Divorce Issues in New York
Legal Recognition and Documentation
One of the primary issues for LGBTQ+ couples seeking divorce in New York is ensuring that their marriage is legally recognized. New York legalized same-sex marriage in 2011, which provides legal protection for LGBTQ+ couples who marry within the state. However, complications may arise if the marriage took place in a different state or country where LGBTQ+ marriage wasn't recognized at the time. In such cases, it's crucial to consult with an attorney to determine the status of the marriage and its legal recognition in New York.
For some LGBTQ+ couples, especially those who entered into domestic partnerships or civil unions before same-sex marriage became legal, the dissolution process may be more complex. These legal relationships may not be automatically converted into marriages, and couples may need to navigate the legal framework surrounding these partnerships during the divorce.
Child Custody and Support
Child custody and support issues are common in LGBTQ+ divorces, especially if the couple has children together. New York courts prioritize the best interests of the child when determining custody arrangements, regardless of the parents' sexual orientation or gender identity. However, custody disputes can become emotionally charged and complex, requiring careful consideration of factors such as:
- Each parent's involvement and bond with the child
- The child's age, preferences, and needs
- The parents' ability to provide a stable and nurturing environment
- Any history of abuse or neglect
- Co-parenting plans and schedules
Child support is another crucial issue to address. The court calculates child support based on the Child Support Standards Act (CSSA) guidelines, which consider both parents' incomes and the number of children involved. LGBTQ+ parents should be aware of their rights and responsibilities regarding child support, as it applies equally to all parents, regardless of their sexual orientation or gender identity.
Property Division
Property division in a divorce can be contentious and complicated for LGBTQ+ couples, just as it can be for heterosexual couples. New York follows the equitable distribution model, which means that marital property is divided fairly but not necessarily equally. Marital property includes assets acquired during the marriage, while separate property typically includes assets brought into the marriage or received through inheritance or gift.
Many LGBTQ+ couples have been domestic partners for years or decades prior to the legalization of same-sex marriages, which can make property division much more complex. Equitable distribution doesn't always mean a 50-50 split, and LGBTQ+ individuals should work closely with an attorney to ensure their rights and interests are protected.
Alimony/Spousal Support
Alimony, or spousal support, may be a consideration in LGBTQ+ divorces when one spouse was financially dependent on the other during the marriage. The court will evaluate factors such as the length of the marriage, the financial situation of each party, and the standard of living established during the marriage when determining whether spousal support is appropriate. The court's decision aims to help the financially dependent spouse maintain a similar standard of living after the divorce. LGBTQ+ individuals should be aware of their rights and consult with an attorney regarding spousal support issues.
Name Change and Gender Marker Change
For transgender individuals, changing one's name and gender marker on identification documents is a crucial aspect of the divorce process. In New York, the process of legally changing your name and gender marker has been streamlined in recent years, but it can still be legally complex and time-consuming. During a divorce, some individuals may decide to revert to their pre-transition name or make other legal identity changes. It's essential to consult with an attorney who understands the intricacies of name and gender marker changes in New York and can guide you through the process.
Societal Stigma and Discrimination
Despite New York's reputation as an LGBTQ+-friendly state, LGBTQ+ individuals can still face stigma and discrimination, which may affect the divorce process. While the legal system aims to be impartial, biases and prejudices can sometimes surface in courtrooms, mediation sessions, or interactions with opposing parties. It's essential to work with an attorney who is not only well-versed in family law but also sensitive to LGBTQ+ issues and can advocate effectively on your behalf, ensuring that you are treated fairly and respectfully throughout the divorce proceedings.
LGBT-Friendly Attorneys
Working with a knowledgeable and LGBTQ+-friendly family law attorney is crucial during an LGBTQ+ divorce. An attorney who understands the unique challenges and issues faced by LGBTQ+ individuals can provide more effective representation and ensure that your rights are protected.
At Berkman Bottger Newman & Schein, we are dedicated to providing compassionate and expert legal support for all individuals, including those within the LGBTQ+ community, navigating the complexities of divorce in New York City. Our team understands the unique challenges that LGBTQ+ couples may encounter during this process and is committed to ensuring that your rights and interests are protected.
We work tirelessly to help you achieve a fair and equitable resolution, addressing issues such as property division, child custody, and spousal support. With a deep understanding of New York's legal landscape and a commitment to promoting inclusivity and respect, we stand by your side every step of the way. Our goal is to make your divorce as smooth and stress-free as possible, so you can move forward with confidence and a renewed sense of security.
Call Berkman Bottger Newman & Schein at (212) 466-6015 or contact us online to get started.
