For more than a decade, same-sex couples have had the right to marry and divorce in New York. The Empire State became only the sixth state in the U.S. to legalize same-sex unions with its 2011 Marriage Equality Act. Four years later, the U.S. Supreme Court declared same-sex marriage legal throughout the country.
Married same-sex couples must resolve the same issues that opposite-sex couples face if they decide to divorce:
New York’s family laws are gender-neutral, but the standard application can put some sex-sex couples at a disadvantage.
Marriage Length Isn’t Appropriate Threshold in Same-Sex
Married couples who divorce have the right to equitable distribution, child custody, child support, and spousal maintenance. LGBTQ+ unions are no different. These relationships, however, do have specific issues that are not found in opposite-sex marriages.
Divorce matters such as spousal maintenance and property division are partly based on the length of the marriage. The longer the marriage, the more marital property is typically acquired. The longer the marriage, the longer one spouse may receive spousal maintenance from the other.
Marriage length works well for heterosexual couples, who have always had the right to marry. They did not have to wait for a change in state law or a U.S. Supreme Court ruling before walking down the aisle. Determining when the marital relationship began is straightforward.
On the other hand, same-sex couples could have been together decades before they could legally marry. By most standards, they lived together as a married couple despite not having a marriage license. They bought homes together and had children. They vacationed together and made personal and financial decisions in consultation with each other.
If a judge considers only the years they were legally married, the couple could be shortchanged in a divorce order.
Marriage Length and Spousal Maintenance
New York law bases how long a spouse can receive maintenance on the length of their union.
The general guidance for New York spousal maintenance is as follows:
- A spouse may receive up to 5 years of maintenance in marriages that last up to 15 years.
- A spouse may receive up to 8 years of maintenance in marriages that last up to 20 years.
- A spouse can receive maintenance for up to half the length of the marriage in unions lasting more than 20 years.
The court analyzes other factors when deciding whether to award support such as the standard of living established in the marriage and each spouse’s income and financial obligations.
Marriage Length and Marital Property
Property that is purchased prior to a marriage is generally considered separate property. Separate property remains with the individual who purchased it and is not split in a divorce. Most assets acquired during the marriage are presumed marital property and are subject to being divided between divorcing spouses.
Many LGBTQ+ couples lived together as married couples before 2011. Determining what is marital vs. separate property can be particularly complicated in these same-sex unions. Couples can have years or decades of joint purchases and investments that should be considered marital, even though they weren’t married in the eyes of the law at the time.
A Tale of Two Couples
Consider two couples, one same-sex and the other not. Both began dating in 2000. The heterosexual couple married and moved in together in 2002. The same-sex couple moved in together the same year after having a commitment ceremony because they could not marry. They then married in 2011 when they legally were granted that right. Both couples bought homes, furnishings, and cars together.
Both couples split up and decide to divorce in 2022. The judge makes decisions based on the heterosexual couple being married for 20 years. In a parallel divorce case, the judge disregards any of the time the same-sex couple was together prior to their marriage in 2011. The number and value of assets subject to equitable distribution are reduced. The duration of spousal maintenance is reduced.
Legal Counsel Experienced in Same-Sex Divorces
At Jason M. Barbara & Associates, P.C., we understand the unique issues impacting the divorce of same-sex couples. Our role is to fight for your best interests. We take that job very seriously.
Our clients receive personalized attention and strategies. We strive for the best possible outcome, whether through aggressive court arguments or savvy negotiations.
Schedule a free consultation to discuss your potential divorce case. Call (516) 406-8381 or complete our online form.