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Rockland & Westchester County Divorce Lawyer > Blog > Family > The Division of Assets and Debts in a Same-Sex Divorce

The Division of Assets and Debts in a Same-Sex Divorce


In 2011, New York State passed the Marriage Equality Act. In 2015, the U.S. Supreme Court ruled that same-sex marriage was legal in all 50 states. Since then, LGBTQ+ couples have enjoyed roughly the same rights and privileges as their heterosexual counterparts. But this hasn’t come without complications. Since same-sex marriage has only been legal for less than a decade nationally, and a little longer in New York State, issues related to property distribution, alimony, and child custody have arisen. This is largely because many of these matters are determined by the length of the marriage. In many states, same-sex marriages are only considered valid at the date of the actual marriage despite the fact that discrimination against gay couples prevented them from marrying life partners. In New York State, the matter is handled differently. While there is no established legal formula for determining when a marriage began, a spouse may argue that the partnership began prior to the actual date of the marriage. Judges will consider several factors when determining when a same-sex marriage began. In this article, the Westchester County same-sex divorce attorneys at the Law Offices of Robert S. Sunshine will discuss the presumptive date when a marriage began and how it impacts issues such as asset distribution.

Understanding asset distribution in New York State 

To understand why this issue is complex, you must understand the concept of separate property and the marital estate. In New York, assets and debts that were acquired during the marriage are considered property of the marital estate. When a couple divorces, these assets and debts must be distributed equitably among the partners. For many same-sex couples, their marriage could have only begun in 2011. However, the courts recognize that discrimination against same-sex couples complicates issues related to when the marriage actually began. In these cases, the courts may assign a presumptive date for the marriage that occurred prior to the actual marriage for the purpose of deciding what belongs to the marital estate.

When did the same-sex marriage begin? 

Many same-sex couples had been together for years before New York passed its Marriage Equality Act. The courts recognize that since discrimination played a role in preventing the recognition of the marriage, it’s only fair to consider other factors regarding when the marriage actually began. Courts now look at the couple’s relationship history when determining the beginning of the marriage. Different judges will handle this differently. Many judges will consider factors such as:

  • When did the couple start living together?
  • Were there any breaks in the relationship?
  • Did the couple hold a wedding or commitment ceremony?
  • Did the couple enter into a domestic partnership or civil union?
  • How did the couple organize their finances?
  • Did the couple have a written agreement between them?

Talk to a Westchester County Same-Sex Divorce Attorney Today 

The Law Office of Robert S. Sunshine represents the interests of same-sex couples during divorce. Call our Westchester County family lawyers today to schedule an appointment, and we can begin addressing your concerns right away.

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