Across the country, same-sex couples have been winning victories when it comes to the right to enjoy some or all the benefits that a heterosexual couple would – including the right to marry, adopt and raise children, receive tax breaks and share health insurance.
Varying state-level actions have resulted in a legal patchwork of laws that vary depending on where you live. One side effect of this is inconsistent divorce laws. People have fought so hard for the right to marry, but if they don’t reside in a state like New York that recognizes same-sex marriage, they may be stuck in a desperate state of bitter “wedlock.”
The good news for New Yorkers is that even if you and your partner were legally married or entered a valid same-sex civil union or domestic partnership somewhere else, you can get divorced here without much of a hitch. The risk is when those married in New York move out-of-state to a place that doesn’t recognize same-sex marriages. If the couple no longer retains residency in New York, they will be unable to file for divorce here.
Our same-sex uncontested divorce attorneys know that an uncoupling between same-sex partners largely follows the same path as heterosexual couples. That is, these cases can proceed relatively uncomplicated assuming you initiate a divorce and your spouse is not contesting any aspects.
Of course, like any other split, matters can become complicated if you share children under 21 or if there are disputes as to the division of property. Sometimes, these matters can be even more complex in a same-sex union, particularly if a child biologically only belongs to one parent or if there are significant assets to divide.
But generally, divorcing same-sex couples in New York will face the same issues to which any other couple is prone. Problems usually arise when they move.
For example, if a couple marries in New York and then moves to Texas. A judge there recently ruled that because the state doesn’t recognize the marriage, it has no jurisdiction to void it or grant a divorce.
Parties in that case have filed an appeal, which is pending. Fortunately, there are no children involved in that split, although we recognize they are involved in many other instances.
As it stands, homosexual marriage is allowed in 19 states, plus the District of Columbia. However, even in some of those places, laws governing divorce haven’t kept pace, leading to calls for national reform. Some states have responded by loosening residency requirements necessary to obtain an unconstested divorce. As of right now, uncontested divorce between same-sex couples living elsewhere can be granted in Vermont, D.C., Delaware, Minnesota, Hawaii, Illinois and California, assuming the couple can travel there for the proceedings. However, those courts have declined to take on cases for non-residents where there are disputes regarding issues like child custody, visitation or spousal support are in question.
In the dozen other states that allow same-sex marriage – including New York – residency is required for a divorce to be granted. The New York residency requirement for divorce is one full year preceding the action. However from that point, an uncontested divorce can be completed in a matter of weeks.
Because same-sex divorce can raise some unique challenges, even when both parties agree to separate, it’s important to consult with an experienced attorney.
If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.
Divorce law out of synch with same-sex marriage, Sept. 30, 2014, By Leanne Italie, Associated Press
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