Navigating a Same Sex Divorce in New York

What You Need to Know About Same Sex Divorces

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What is a same sex divorce?

A same sex divorce is a matrimonial action to obtain a divorce between a same sex couple. Same sex couples may also bring any other type of matrimonial action defined under Domestic Relations Law 236 (B)(2)(a), such as an action to declare the marriage valid or void.

Are same sex divorces treated differently than different sex divorces?

Same sex divorces are treated the same as heterosexual divorces. Same sex couples have the exact same rights under the domestic relations law as different sex couples without exception.

Are there differences between same sex divorces and heterosexual divorces?

Differences exist in a gay divorce and a straight divorce largely due to workarounds used by the gay couple which arose from the ban on their getting married. While not limited to gay couples, same sex couples have a much higher percentage of arising from these workarounds.

Many of these issues are identical to issues faced by straight couples who entered into a financial partnership prior to getting married.

One issue which is unique to gay couples is when the marriage itself took place prior to universal recognition, creating a situation where one spouse would benefit from an earlier date and the other spouse would benefit from a later date.

A second issue arises since 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.

What happens if the same sex marriage didn't happen because it was prohibited?

If a couple did not get married because it was prohibited by law, 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, this specific argument is not available to them.

Can the Court treat a jointly owned house acquired by a same sex couple prior to the marriage as marital property?

If there was no marriage, then the court is without authority to treat the house as marital property, and it cannot be awarded under equitable distribution.

What happens when a same sex couple purchased a house in both names prior to the marriage?

When a same sex couple buys a house together prior to the marriage and its under both names, they have the same options as a heterosexual couple. In this situation, 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. A partition will award each party's share as appropriate under the circumstances in a similar way as it would under equitable distribution.

What happens when one partner in a same sex couple kept all assets under their name before the marriage?

If one partner kept all assets under their name prior to a legally recognized marriage, the non titled spouse has the same option as a straight couple. The solution here is to bring a constructive trust case over the assets such as the house.

What happens when a same sex couple marriage is unlikely to be recognized as valid or was already declared void by a court?

If a same sex couple has a marriage whose validity is in question, then that falls under the definition of a matrimonial action. One type of matrimonial action which is not common is to have the court declare a marriage null or void. Even if the marriage is declared void from its start, the court still has full authority to grant all relief as if it was a divorce. If the marriage is declared valid, a divorce can be granted in conjunction with that finding.

This is a non typical situation and would be considered a complex matrimonial action.

What happens when a same sex couple's marriage was before 2011?

In New York, same sex marriages were recognized in 2011. If a couple was married before 2011, the marriage will still be recognized as valid since the prohibition should never have existed in the first place.

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.