Same-Sex Divorce Lawyer

Same-Sex Divorce Lawyer Serving Nassau County, Suffolk County, & New York City

Since 2011, the state of New York has sanctioned gay marriage and recognized same-sex unions made in other states. Our experienced same-sex divorce lawyers know that not all same-sex marriages — much like heterosexual marriages — last until death, even if the marriage began with a solid commitment to last forever.

If you’re seeking the dissolution of a same-sex marriage, a divorce attorney from Hedayati Law Group can guide you through the process. Our Long Island same-sex divorce lawyers have helped many same-sex couples through divorce, protecting their rights as we address the unique legal issues same-sex couples face when working through property division, child custody, child support, and visitation matters. We can help you successfully resolve your case in or out of the courtroom. Contact us at (516) 334-4100(516) 334-4100 to schedule a complimentary consultation.

Key Takeaways About Same-Sex Marriages and Same-Sex Divorces in New York

• Legal Recognition: New York has legally recognized same-sex marriages since the passage of the Marriage Equality Act in 2011, which gave same-sex couples the same rights and responsibilities as heterosexual couples.
• No-Fault Grounds for Divorce: Same-sex couples can file for divorce based on the same legal grounds as straight couples, including irretrievable breakdown of the marriage for at least six months.
• Fault Grounds for Divorce: For gay couples and straight couples, fault grounds for divorce include cruel and inhuman treatment, abandonment, adultery, imprisonment, living apart for at least one year after signing a legal separation agreement, or living apart for at least one year after a court-ordered judgment of separation.
• Property Division: New York state laws operate on the principle of equitable distribution, dividing marital property fairly but not necessarily equally. This principle applies to same-sex divorces; therefore, both parties should fully disclose their financial circumstances.
• Child Custody and Support: The best interest of the child dictates custody decisions, regardless of the parents’ sexual orientation. Both parents may have rights concerning custody, visitation, and support, especially if both have played active roles in the child’s life.
• Spousal Support: Alimony or spousal support may be awarded in same-sex divorces based on various factors, including the financial needs and earning capacity of both parties, following the same guidelines applicable to heterosexual couples.
• Legal Precedents: New York case law and statutory updates continually shape the legal landscape for same-sex marriages and divorces, addressing issues such as inheritance rights and health care decisions.
• Consultation with Professionals: Given the complex nature of family law, same-sex couples undergoing divorce should consult experienced attorneys who focus on same-sex family law to adequately protect their rights throughout the process.

A Local Family Law Attorney Explains Same-Sex Divorce in New York

Before 2011, gay and lesbian couples could only form domestic partnerships or civil unions, which did not provide the same legal rights and benefits as marriage. When Governor Andrew Cuomo legalized same-sex marriage in June 2011, it granted same-sex couples all associated rights and responsibilities under state laws and recognized valid same-sex marriages performed in other states.

Same-sex divorce follows the same legal process as heterosexual divorce. The first step is filing a petition for divorce with the court, requesting the dissolution of the marriage and outlining any relevant issues such as child custody and property division. From there, both parties must negotiate or litigate these issues until they reach a resolution. If they cannot reach an agreement, a judge will decide contested matters.

Differences Between Same-Sex & Heterosexual Divorces in New York

While the legal process for same-sex and heterosexual divorces may be similar, some differences between divorce for same-sex couples and opposite sex couples exist, including:

• Different sex couples may have unique property or financial arrangements requiring special attention during divorce proceedings.
• In cases where a child has two parents of the same gender, custody and support matters may involve different considerations than those involving opposite-gender parents.
• Additional legal complications may arise concerning inheritance, health care decisions, and other rights for same-sex couples going through divorce.

Property Division and Asset Division

New York follows the principle of equitable distribution concerning property division and asset division during a divorce. Debt division is also an important component of this issue. Marital property is divided fairly between spouses, though not necessarily equally.

For same-sex couples, dividing property can create unique conflicts, especially if the couple were long-term domestic partners before the state legally recognized marriage. Distinguishing between separate property and the couple’s property and valuing assets acquired jointly before marriage can present formidable challenges.

Both parties should provide full financial disclosure. The legal process will take into account each spouse’s contributions to the marriage—whether financial or otherwise. Navigating these complexities requires the guidance of an experienced attorney to pursue a fair and just resolution for both parties.

Spousal Support/Alimony

In same-sex divorces, New York courts determine spousal support or alimony using the same criteria as for heterosexual couples, considering various factors, including:

• The length of the marriage
• The standard of living established during the marriage
• The financial resources and earning potential of each spouse
• The contributions of each party to the marriage, whether economic or as a homemaker.

Same-sex couples could face unique challenges, particularly if one partner had a higher earning capacity or if the couple faced disparities in financial status due to societal or legal inequalities before the legal recognition of their marriage. Additionally, a pre-existing civil union or domestic partnership could potentially complicate the determination of spousal support.

Legal Considerations for LGBTQ+ Parents

LGBTQ+ parents face unique legal issues during a divorce, particularly concerning child custody and parental rights. One significant issue is the recognition of non-biological parents, especially for a child born or adopted before the legal recognition of the marriage. As courts determine legal parentage, the matter becomes complex if neither parents are listed on the birth certificate or if there was no formal adoption process.

Additionally, navigating custody arrangements requires careful consideration of each parent’s role in the child’s life. The best interest of the child remains paramount, but recognizing and protecting both parents’ rights often necessitates informed legal counsel. Addressing these challenges requires a thorough understanding of LGBTQ+ family law to pursue fair and equitable solutions for all parties involved.

Property Division and Asset Division

New York follows the principle of equitable distribution concerning property division and asset division during a divorce. Debt division is also an important component of this issue. Marital property is divided fairly between spouses, though not necessarily equally.

For same-sex couples, dividing property can create unique conflicts, especially if the couple were long-term domestic partners before the state legally recognized marriage. Distinguishing between separate property and the couple’s property and valuing assets acquired jointly before marriage can present formidable challenges.

Both parties should provide full financial disclosure. The legal process will take into account each spouse’s contributions to the marriage—whether financial or otherwise. Navigating these complexities requires the guidance of an experienced attorney to pursue a fair and just resolution for both parties.

Spousal Support/Alimony

In same-sex divorces, New York courts determine spousal support or alimony using the same criteria as for heterosexual couples, considering various factors, including:

• The length of the marriage
• The standard of living established during the marriage
• The financial resources and earning potential of each spouse
• The contributions of each party to the marriage, whether economic or as a homemaker.

Same-sex couples could face unique challenges, particularly if one partner had a higher earning capacity or if the couple faced disparities in financial status due to societal or legal inequalities before the legal recognition of their marriage. Additionally, a pre-existing civil union or domestic partnership could potentially complicate the determination of spousal support.

Legal Considerations for LGBTQ+ Parents

LGBTQ+ parents face unique legal issues during a divorce, particularly concerning child custody and parental rights. One significant issue is the recognition of non-biological parents, especially for a child born or adopted before the legal recognition of the marriage. As courts determine legal parentage, the matter becomes complex if neither parents are listed on the birth certificate or if there was no formal adoption process.

Additionally, navigating custody arrangements requires careful consideration of each parent’s role in the child’s life. The best interest of the child remains paramount, but recognizing and protecting both parents’ rights often necessitates informed legal counsel. Addressing these challenges requires a thorough understanding of LGBTQ+ family law to pursue fair and equitable solutions for all parties involved.

New York Divorce Laws & Legal Process for the Dissolution of a Same-Sex Marriage

Filing for Divorce

New York follows the same legal process for divorce when same-sex and heterosexual couples are involved. However, as mentioned earlier, there may be unique considerations that arise during a same-sex divorce due to the complexities of previous legal recognition and societal inequalities. A knowledgeable and experienced LGBTQ+ family law attorney can provide critical support in such areas as:

• The nuances of property division, alimony/spousal support laws
• Child custody arrangements and parental rights
• Prenuptial or postnuptial agreements

Residency Requirements

According to New York’s divorce laws, you and your spouse must satisfy one of the following residency requirements:

• You were married in New York and either spouse resided in the state for at least one year.
• You and your spouse have lived in the state for at least one year before filing.
• The grounds for divorce happened in the state, and either spouse lived in the state for at least one year.
• If you were not married in New York and the basis for divorce didn’t occur in the state, either spouse must have lived in the state for two years.

Grounds for Divorce

New York recognizes fault and no-fault grounds for divorce. The no-fault option is often the more straightforward route, requiring only that the marriage has irretrievably broken down for at least six months. Fault-based grounds may include cruel or inhuman treatment, abandonment, imprisonment, or adultery.

Contested vs. Uncontested Divorce

New York categorizes divorces as either contested or uncontested based on the parties’ agreement regarding the terms of the dissolution. An uncontested divorce occurs when both spouses agree on all major issues, such as property division, spousal support, and child custody. In this scenario, the process tends to be more straightforward, often requiring less time and legal expense, as the couple can file joint paperwork and avoid lengthy court proceedings.

Conversely, a contested divorce arises when the spouses cannot reach an agreement on one or more issues, necessitating court intervention to resolve discrepancies. This type of divorce can be significantly more complex and prolonged, requiring negotiation, mediation, or even a trial to facilitate a resolution. The emotional and financial costs of a contested divorce can escalate quickly, making it crucial for those involved to seek competent legal counsel to navigate the litigation effectively and protect their rights throughout the process.

Mediation and Alternative Dispute Resolution

Same-sex divorces in New York increasingly seek mediation and alternative dispute resolution (ADR) because they offer a more amicable and less adversarial approach compared to traditional court proceedings. Mediation involves a neutral third-party mediator who facilitates discussions between the divorcing spouses to help them reach a mutual agreement on key issues. Because it allows for open communication and exploration of creative solutions that may be more reflective of their unique circumstances and relationship dynamics, many same-sex couples benefit from mediation.

Furthermore, the confidentiality of mediation protects personal matters from becoming public, making it an appealing option for many couples seeking to preserve their privacy. Engaging in mediation or other forms of ADR facilitate a smoother divorce process and lays the groundwork for healthier co-parenting relationships post-divorce.

Child Support in Same-Sex Divorce Cases

Historically, when calculating child support, a bias has existed against men and women, with many cases concluding with the father paying child support to the mother, operating under an unfair assumption that a man in the relationship has the stronger ability to provide. In same-sex divorces, this antiquated thinking can present problems.

When calculating support payments for children, the court will consider:

• Both parents’ monthly gross income
• Daycare expenses
• Costs related to the child’s healthcare
• Child’s accustomed standard of living
• Each parent’s shared portion of responsibility
• Child support obligations from past marriages

Ultimately, supporting a child should not be a crippling burden to the payor; however, it should provide well for the payee and child. For these reasons, seek the assistance of a knowledgeable family lawyer with extensive experience in LGBTQ+ divorce matters.

Challenges Unique to Same-Sex Parents and Couples

Same-sex couples and parents face unique challenges during divorce proceedings, potentially including:

• Complex legal issues surrounding the recognition of their marriage and parental rights.
• Bias or discrimination from court officials, lawyers, and even family members.
• Pre-existing civil unions or domestic partnerships that may affect property division and spousal support.
• Fair treatment in child custody and support arrangements, especially if one parent is not legally recognized as a parent.

To overcome these challenges, seek knowledgeable legal representation. An experienced attorney will understand the complexities of same-sex divorce cases and work toward achieving a fair outcome for all parties involved.

Adoption and Parentage Issues for Non-Biological Parents

In some cases, one parent may be the biological or adoptive parent of a child while the other parent has no legal ties to the child. This scenario can create complications during a divorce, as the non-biological/non-adoptive parent may have limited rights and could potentially lose visitation or custody rights. Establishing legal parentage through adoption or other means is vital for same-sex couples to protect both parents’ rights in case of a divorce.

Co-parenting Arrangements

Same-sex couples may also face unique challenges when it comes to co-parenting after a divorce. In traditional heterosexual marriages, it’s often assumed that one parent will have primary custody while the other parent will have visitation rights. However, in same-sex marriages where both parents may be heavily involved in the child’s life, determining a fair and equitable custody arrangement may be more difficult.

Impact of Federal Laws 

Despite marriage equality laws at the state level, same-sex couples may still face challenges due to federal laws that do not recognize same-sex marriages. For example, concerning taxes and benefits, same-sex couples may not have the same rights as heterosexual married couples, impacting insurance coverage, property division, and other considerations during a divorce.

Dealing with Pre-Marital or Civil Union Agreements

Some same-sex couples may have entered into pre-marital or civil union agreements before marriage equality laws evolved. These agreements may require careful examination and potential renegotiation during a divorce to protect both parties’ rights.

With Over 150 Years of Combined, Unmatched Experience, Hedayati Law Group Offers Zealous Advocacy for Different Sex Couples Navigating Divorce

At Hedayati Law Group, we understand the challenges married same sex couples face when going through divorce. We’re dedicated to protecting your rights and guiding you through every legal proceeding with zealous advocacy and  compassion. With over 150 years of combined experience, our team has extensive knowledge of state laws and experience in state courts. Our background in banking and finance offers a competitive advantage. You can count on us to fight for your best interests with unwavering dedication.

Contact us at (516) 334-4100(516) 334-4100 or complete our online form to schedule a complimentary consultation.

Hedayati Law Group, P.C. ~ We Fight for You with over 150 Years of Combined, Unmatched Experience