In May 2004, Massachusetts was the first state to legalize same-sex marriage, a huge victory for marriage equality for all.

However, not all states made same sex-marriage legal. Of course, marriage often leads to divorce, which meant that a same-sex couple could only divorce in certain states. It led to a lot of complications and confusion.

In June 2015, a Supreme Court ruling in the case Obergefell vs. Hodges, made same-sex marriage in all 50 states. This means that any couple can now get married in any state, as well as get divorced in any state.

What are the laws regarding same-sex divorce? Are there are any complications that same-sex couples may face when getting a divorce? Read on to learn more about New York laws for same-sex divorce.

New York Same-Sex Divorce Laws

A divorce involving a same-sex couple is not much different than one involving a heterosexual couple. The process is the same in New York for same-sex divorce. The couple must file the appropriate paperwork and establish the terms of the divorce. The couple can file a contested or uncontested divorce. They can divorce for any reason. They can also use mediation, arbitration, or litigation, just like any other couple filing for divorce. The only requirement is that one spouse has lived in New York for at least one year.

However, same-sex couples who married in New York do not have to divorce in New York. They can divorce in any state, as long as they meet the state’s requirements.

New York is an equitable distribution state. Therefore, in a divorce, assets are split as fairly as possible, even in same-sex divorces. Asset division may not be 50/50 and is instead based on each spouse’s contribution to the marriage.

Possible Complications for a Same-Sex Divorce

The biggest issue is that many same-sex couples have been together for many years, but it is difficult for the courts to determine the longevity of the relationship. Same-sex marriage was legalized in all states in 2015, but many couples were together long before then. How long the relationship lasted comes into play in terms of assets and alimony.

When there are children involved, there can also be issues regarding child custody. Typically, the child was adopted or created through artificial insemination, meaning that only one party has parental rights. Even though both parties are raising the child together, the non-legal parent often ends up with fewer rights.

To avoid these issues, it may be in a same-sex couple’s best interest to sign a prenuptial agreement before marriage. That way, the couple can outline how they want the court to handle these matters. They are more likely to get the rights they deserve.

Ted Alatsas
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Trusted Brooklyn, New York Family Law Attorney helping NY residents with Elder Law and Asset Protection
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