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Same Sex Divorce

Same Sex Divorce

Suffolk County Attorney For Same Sex Divorce

By J. Douglas Barics

Same sex divorces may present several non typical legal issues which may not be apparent at first, and the answers to them are found in areas of the law which are closely related to matrimonial law.

New York recognized same sex marriages in 2011 with the Marital Equality Act, (the "MEA") found in Domestic Relations Law Section 10-A. For same sex couples who met and got married after the date the MEA went into effect, the financial issues of a divorce is handled the same way as a heterosexual divorce.

The right of same sex couples to marry became the law of the land in 2015 when the Supreme Court decided Obergefell v Hodges.

The issues become challenging when a same sex couple became married prior to the MEA or used other work-arounds the ban on same sex marriage. Couples would  enter into religious ceremonies despite the right to marriage not being recognized at the time. The courts have addressed this issue, and have said that despite the ban on same sex marriage prior to 2011, a religious ceremony would be recognized as a marriage since the ban was later held to be unconstitutional.

In addition, other legal options are more common in same sex marriages such as partitions and constructive trusts. Both of these options are commonly used to resolve legal disputes when the parties are not married.

Having a divorce attorney who is well versed in both matrimonial law, the evolving legal area of same sex divorce, and other related areas of law to cover situations that fall outside of divorce law is critical in making sure you have proper representation.

Do you need representation in a same sex divorce?

Contact us online or at (631) 864-2600.

Same Sex Divorce in New York

What you need to know about a same sex divorce

Why are there different issues for a same sex divorce?

The issues related to same sex divorce exist because many relationships existed prior to same sex marriages being recognized as a right. In addition, because same sex partners cannot conceive a child, children born during the marriage fall outside longstanding case law and is a new area of law that is being addressed through legislation and case law.

If my spouse and I were married in 2011 or later, would the law treat us as a heterosexual couple?

Yes, there are generally no financial issues unique to same sex marriages entered into 2011 or later, with one notable exception.

What exception is that?

If the reason the marriage did not occur prior to 2011 was due to it not being lawful to do so, and the couple lived together as a single economic unit, that may be a factor considered by the court in deciding the weight to put on the time spent residing together prior to marriage. Since heterosexual couples had no such barrier, it is not available to them.

Can the Court treat our jointly owned house acquired prior to the marriage as marital property since we were not allowed to marry?

If there was no marriage, even a void one at the time, then the jointly owned house is not marital property and the court cannot distribute it under equitable distribution.

What is a same sex couple to do if a house was purchased prior to the marriage in both names?

The same thing as a heterosexual couple. A partition action can be filed in addition to the divorce, giving the court the authority to dispose of the house under the real property and proceedings law.

What about those situations when one partner in the same sex relationship kept all assets under their name prior to the marriage being recognized?

The same sex couple has the same rights here as a heterosexual couple. In this this fact pattern, the remedy is to bring a constructive trust case over the house.

What happens if we got married before 2011, how does that work?

The court will recognize a marriage entered into prior to 2011 even if it was unlawful at the time. The reason is that it never should have been unlawful.

Contact Our Same Sex Divorce Attorney Today

At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any same sex divorce, no matter how challenging. With over 25 years of matrimonial experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled divorce lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.

For a free phone case consultation or to schedule an office meeting, call 631-864-2600.

Overview

Matrimonial actions are defined by statute; the most common being divorce, annulment, and a declaration of a void marriage. For every matrimonial action all ancillary relief is available.

Divorce

Divorce is the most common matrimonial action. Grounds are no longer the primary focus, the emphasis is resolving the financial matters and custody.

Annulments

An annulment is a matrimonial action seeking to declare a valid marriage void. All ancillary relief is available. All annulment grounds are fault based, and require a higher level of proof to establish.

Void Marriages

Void marriages are those which are void from inception. An action requesting a declaratory judgment is a matrimonial action and all ancillary relief is available.

Equitable Distribution

Equitable distribution authorizes the matrimonial court to award all marital property to either spouse, without regard to title.

Maintenance

Maintenance is the support payments from one spouse to another. Since 2016 the amount is determined by a formula.

Child Support

Parents have an obligation to support their children, and the parent with residential custody will be awarded child support. The amount of support is determined by a formula.

Custody

When parents cannot decide where their children shall live and how to make decisions involving them, the court will decide custody based on the bests interests of the child.

Counsel Fees

Awards of counsel fees to the non monied spouse is available in all matrimonial actions. Awards can be made during the case and at the conclusion.

Expert Fees

Awards of expert fees to the non monied spouse is available in all matrimonial actions.

Exclusive Occupancy

The court is authorized to award exclusive occupancy to one party, giving them exclusive use and possession of a home for a set period of time during or after a matrimonial action.

Pendente Lite Motions

Pendente lite motions used when a spouse in a matrimonial action needs needs immediate court assistance on something that cannot wait until trial or a final settlement.

Same Sex Divorce

Same sex divorces present unique issues such as when the couple got married before it was recognized by law, or when couples used work arounds for their marital property.

Modification of Child Support

Child support may be modified based on a change of income, a change of circumstances, or if three years have passed since the last modification. COLA adjustments to child support orders can also be obtained.

Modification of Maintenance

Maintenance is subject to modification or early termination but the circumstances when these can occur are less common than in the past.

High Net Worth Divorce

High net worth divorces often involve non typical financial holdings that require special care in determining their disposition.

Marital Agreements

Marital agreements are contractual agreements between future, existing, or prior spouses who decide to resolve their own issues instead of letting a court decide for them.

Complex Challenges

Complex challenges in matrimonial actions can range from complex financial issues, inter-state or international issues, or procedural issues which deprived one spouse from their day in court.

Matrimonial Appeals

Matrimonial appeals requires a combination of matrimonial law and appellate law. A lack of understanding of either can prove fatal in an appeal.