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Rockland & Westchester County Divorce Lawyer > Blog > Divorce > Unique Challenges to Same-Sex Divorce in New York State

Unique Challenges to Same-Sex Divorce in New York State


In 2015, the U.S. Supreme Court declared same-sex marriage legal in all 50 states. Prior, New York State had already legalized same-sex marriage in 2011 with the Marriage Equality Act. This legislation made it possible for same-sex couples to receive tax benefits, insurance benefits, health care benefits, and numerous other rights and benefits. Today, the rules of same-sex marriage and same-sex divorce are roughly the same. The same rules apply no matter the gender of the spouses. However, because same-sex couples have been granted the right to marry only for just over a decade, there are certain unique challenges that same-sex couples face. In this article, the Westchester County divorce lawyers at the Law Office of Robert S. Sunshine will discuss same-sex divorce and the unique challenges that same-sex couples face when untying the knot.

Unique considerations for same-sex couples during divorce 

Traditionally, marriage was defined as only between a man and a woman. For same-sex couples married in New York State, that meant that other states did not have to recognize their marriage. This complicated the process of divorce. A non-biological parent had no rights to a child they may have helped raise. If the same-sex couple moved to another state, their union would not be recognized. In 2015, the Supreme Court ruled that same-sex couples could marry and divorce in all 50 states enjoying the same benefits as their heterosexual counterparts. This made things easier for same-sex couples, but could not undo some of the damage caused by same-sex unions not being recognized. This, in turn, created some challenges for same-sex couples who were seeking divorce. Some of these challenges include:

  • Asset and debt distribution – Prior to being given the legal right to marry, many LGBTQ+ couples lived together as partners. When it comes to matters such as equitable distribution, what assets get divided depends on the length of the marriage and when the assets were acquired. Only property that was acquired during the marriage is considered property of the marital estate. However, when did the marriage truly begin? Was it in 2015? 2011, when New York passed its law? Or did the couple live together as married before they were granted the right to legally do so?
  • Spousal support and alimony – When awarding spousal support or alimony to a spouse, the courts consider the length of the marriage. Again, this poses problems for same-sex couples since they’ve only had the right to marry since 2011. Courts may consider when the couple began living together as spouses as opposed to the date of their actual marriage.
  • Child custody issues and same-sex marriage – A child born before same-sex marriage was legalized may not necessarily be considered a child of the marriage. A non-biological parent may not have rights to the child unless a legal adoption took place. Today, same-sex parents would be considered the legal parents of a child born into a same-sex marriage.

Talk to a Westchester County Same-Sex Divorce Attorney Today 

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

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