Are you ending a same-sex marriage in New York?
In modern times, same-sex divorce is governed by the same set of laws as opposite-sex divorce, but there are some unique issues to consider and for which to prepare.
While the process of divorce is largely the same for both same- and opposite-sex couples, there are some important factors to consider in addition to the basics of divorce: be proactive, be prepared, and obtain competent counsel - not necessarily in that order.
New York was among the earliest states to begin licensing same-sex marriages in 2011 when it enacted the Marriage Equality Act.
The Act preceded the 2013 case U.S. v. Windsor, in which the Supreme Court ruled that the Defense of Marriage Act—the arcane law defining “marriage” to exclude same-sex couples—was unconstitutional under the Fifth Amendment. A now-famous case titled Obergefell v. Hodges followed in 2015, wherein the Supreme Court ruled that same-sex marriage is a right guaranteed by the Equal Protection Clause of the 14th amendment. Same-sex marriage is now both legal and commonplace.
Just as with opposite-sex couples, same-sex couples now also frequently file for divorce, and navigate the same processes, albeit with different considerations sometimes at play.
Despite any potential pitfalls, keep in mind that same-sex couples will be faced with the same areas of family and divorce law that arise in most divorces. These include, but are certainly not limited to:
- 1Division of marital property
- 2Child custody determinations
- 3Payment of spousal support (alimony)
- 4Payment of child support (child maintenance)
How is marital property divided in same-sex divorce?
While the legal process is the same as it applies to valuation and distribution of marital assets (refer to our page on that), it is often the case that same-sex couples will have married later in life and, accordingly, acquired significant assets in their capacity as unmarried individuals prior to marriage.
This is often due to the law’s late recognition of same-sex marriage, which left couples in limbo while politicians and judges disputed a question of basic civil rights.
This aggregation of separate wealth can complicate the valuation and distribution of marital property, or simply obfuscate what actually is marital property unless assets and interests are otherwise addressed in a prenuptial agreement. Whatever the circumstance, the capable matrimonial attorneys at Bikel & Schanfield can help untie the knot, and we can provide LGBTQ individuals the representation they need to navigate divorce proceedings as they apply to significant assets accumulated before marriage, or complex marital property issues.
How are child custody and visitation rights determined in same-sex divorce?
As with marital property, the same laws apply to same-sex couples with respect to child custody and visitation. However, as with the brief window to generate marital property described above, families formed before same-sex marriage was legalized may face additional obstacles if, for instance, children were adopted in other states or by only one of the spouses before the marriage.
The courts have grappled with various challenges to the parental rights of the non-adoptive parent in a same-sex couple throughout the years.
The precedents in New York on this subject are complicated, and the legal landscape has been obscured by a series of complicated cases with unfortunate legal conclusions. While the Marriage Equality Act has helped remedy some of these difficulties, potential adverse outcomes in family law courts should not be taken lightly.
Capable divorce lawyers should be consulted such that a favorable settlement can be reached in your divorce, and so that your rights can be protected whether you are the adoptive or non-adoptive parent.
Even if your prospective or current child custody battle seems simple, do not be blindsided by a spouse who is no doubt contemplating the same legal issues as you now are. Preparation is the key to success, and success in the context of divorce and child custody is a fair and just custody ruling. The decades of collective experience at Bikel & Schanfield can make all the difference in obtaining such a ruling.
Work with the competent divorce attorneys at Bikel & Schanfield.
Divorce agreements need not be as difficult as the process leading to them, and legal assistance can help ensure that your interests are protected. Whether you and your spouse believe that an agreeable divorce settlement is attainable through a collaborative process, or you have experienced a breakdown of collaboration and cooperation in an already difficult time, the assistance of attorneys in each one of these tricky steps can make all the difference.
The matrimonial lawyers at Bikel & Schanfield have significant experience effectively guiding couples through divorces, with often great outcomes. We vigorously pursue the interests of our clients in the context of child support, alimony, property division, and other issues of family law.
Trusting a group of matrimonial lawyers with significant experience, and knowledge of which levers to pull and when can help you reach a favorable outcome in your divorce and custody proceedings.
If you are considering getting a same-sex divorce in NYC, contact Bikel & Schanfield today.
We help LGBT couples resolve separations successfully.