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Same-Sex Divorce in New York

Posted on October 29, 2019

Equal rights for same-sex couples in marriage and divorce

The 2015 Supreme Court case Obergefell v. Hodges states that same-sex couples are guaranteed the fundamental right to marry and that their marriage is legally recognized in each state. If you were married in another state, you are permitted to get a divorce in New York. If you were married in New York and moved, you still have the right to divorce in any other state.

Requirements to obtain an LGBT divorce

Legally, New York State views same-sex divorces the same as any other divorce. Same-sex divorces can be contested or uncontested, there are tax implications to splitting up, and child custody and support decisions are up for negotiation.

Unless both parties are living in New York at the time of the commencement of the action for divorce and the cause of action occurred in New York, in order to obtain a legal divorce in New York, a same-sex couple must have at least one spouse living in New York for one year. Couples who do not yet meet the residency requirement may be able to enter into a separation agreement, which would partially separate the couple on legal grounds, so one partner is not entitled to the other’s assets or responsible for the other’s debts going forward.If you were married in another state, you may still receive a divorce in NY as long as one party meets the residency requirement.

Tax implications of same-sex divorce

The Supreme Court has ruled on several cases involving LGBT marriage and divorce, paving the way for equal rights for those in traditional and non-traditional marriages. The Obergefell v. Hodges decision upholds the same tax laws apply to same-sex divorces as others, in that the fundamental right to marry affords LGBT couples the same tax breaks and obligations as those in same-sex marriages.

Spousal maintenance and dividing property and debts

The same rules for traditional divorces apply to same-sex divorces. Spousal maintenance may be ordered if one spouse earns just 2/3 of the other’s income, and a judge may award temporary or permanent alimony in the interest of the lesser monied spouse’s financial independence.

Property in New York divorces is divided equitably between spouses. A 50/50 division of property may not be possible, but each spouse should end up with a fair division of the marital assets. Any property obtained after a separation agreement is established remains the responsibility of the single party.

Child custody and support

Same-sex couples with children will also need to reach agreements on child custody, visitation and child support payments. If a child was born through fertility treatments while the couple was married or adopted by both parents, child custody does not present any obstacles. Both parties are legal parents to the child, and custody, support and visitation arrangements will be made accordingly. Without an adoption, the legal custody of children born to one parent prior to marriage is complicated in the event of divorce or the separation of the parties.. Without a legal adoption, the non-biological parent can request access to the child, but the law does not guarantee parental rights.

Effective representation for same-sex divorce in New York City

The strategically aggressive New York family lawyers at the law office of Vivien I. Stark, P.C. build a thorough case to protect your rights and best interests throughout your divorce. We are deeply committed to finding the best possible outcome for our clients. Serving Manhattan, Brooklyn, Bronx, Queens, Staten Island, and surrounding counties, our same-sex divorce attorneys are here for you. Contact us online or call us at (212) 349-1600 today to schedule your initial consultation.