Same-sex marriage has been legal in New York State since the passing of the Marriage Equality Act in 2011 and, as with all unions, divorce is always an unfortunate possibility. The requirements for same-sex divorce are the same as those that apply to heterosexual couples: you must satisfy the residency requirements set forth in New Yorkâ€™s Domestic Relations Law (DRL) and seek to dissolve the marriage on one of the approved grounds:
- Cruel and inhuman treatment
- Abandonment for over a year
- Imprisonment for over three years
- Written separation contract and living apart for at least a year
- Court-issued judgment of separation and living apart for at least a year or
- Irretrievable marriage breakdown for a period of at least six months (no fault).
Types of same-sex divorce in New York
There are two primary types of divorce in New York:
- Uncontested divorce: The couple agrees on the grounds for divorce and reaches their own settlement agreement that addresses key issues like property division and child custody.
- Contested divorce: When one spouse challenges a divorce action, the process is typically longer and more drawn-out. The couple may eventually reach a settlement agreement and eliminate the need to go to trial.
Issues to cover in a same-sex divorce
Both spouses will have to agree on the following in a settlement agreement or have each issue decided by a court:
- Division of assets: New York is an equitable distribution state, meaning that if a couple cannot agree on how to distribute marital property, a court will divide it equitably, or fairly. (This does not necessarily mean a 50-50 split.) Unless it has been co-mingled with the marital estate or appreciated in value, all property acquired before the marriage will remain with the original owner and not for distribution.
- Child custody: If any children resulted from the marriage, then a custody and visitation arrangement will need to be created.
- Child support: After custody has been determined, the non-custodial parent will have to pay child support. The amount is usually based on a percentage of combined parental income.
- Spousal maintenance: If one spouse makes considerably less than the other or was a stay-at-home parent, then they may be entitled to spousal maintenance.
If you are in the process of getting divorced from your same-sex spouse in New York, then an experienced family law attorney can help you reach a fair and equitable outcome and avoid the lengthy and expensive court process completely. If the divorce does ultimately need to be handled in court, then your attorney will safeguard and fight for your rights and those of any children you may have, giving you the financial foundation you need to move forward and build a new life. Jayson Lutzky is a Bronx, NY attorney who has been practicing law for over 33 years. He has helped many satisfied clients over the years and offers free in-office consultations on family and divorce law-related matters. Visit www.MyNewYorkCityLawyer.com to learn more about Mr. Lutzkyâ€™s experience or call 718-329-9500.