Ending a marriage is a difficult feat, whether it’s for a same sex marriage or traditional union. Consequently, there are certain aspects of a gay union that make things more challenging. The same problems occur in the severing of both types of marriages. Question like “how do we fairly split the assets,” “who gets the children,” and “is there a need for spousal support,” all come into play. The law is clear about these issues regardless of who is seeking absolution from their marriage.
Division of Assets
It’s wise to have a division of asset statement in a prenuptial agreement. Both heterosexual and gay unions need this document. When no such paperwork exists, then it’s up to the court to ensure an equitable division of property. Any debts that were acquired during the union, as well as debts one party doesn’t know about, is now the responsibility of both parties. These bills will be split down the middle, and the court will order them paid in a fair manner. The court will not waver over the responsibility of the accumulated debt
The Dilemma Of Spousal Support
In a traditional marriage, the husband has a legal obligation to support his wife and provide for her, if he has a more substantial income. When the couple divorces, it doesn’t negate the husband’s responsibilities to her. Spousal support was designed to help the wife be able to live beyond the severing of their union. Just because a couple is of the same sex doesn’t relieve them from their obligation.
One spouse can be ordered to make maintenance payments once the divorce is final. The court must make the decision on which party must pay. If one party makes way more money than the other one, it doesn’t matter if they are male or female. The court has the jurisdiction to order such support. The couple can negotiate and come to an understanding, but the court must sign off on the agreement.
Child Custody and Support
The family court must deal with several obstacles regarding LQBTQ parents. Making a fair determination can be almost impossible. Because both parties are the same sex, only one can legally be the biological parent to the child. So the court must look at surrogate parents, as well as the natural parent, to make an informed decision.
Many LGBTQ couples use a surrogate to have a child. When this is the case, then this person is also figured into the equation. They may not be active in the child’s life, but they gave birth, and they are given the status of the biological parent. This means that the non-biological parent, who may be raising the child, has little rights. It’s one of the areas of the law that doesn’t seem fair.
The problem is that the non-biological parent doesn’t have any legal ties to the child, even though they might be the most critical part. There is some consideration given when the person has taken care of the child financially, physically, and emotionally. Being an essential part of the child’s life doesn’t go unnoticed by the court. The length of time also weighs heavily on the decision.
It’s best to have a formal adoption to gain a legal relationship with the child. The surrogate will relinquish all rights, and those rights dare given to the former non-biological parent. These agreements should be done before the divorce to ensure there are no legal issues regarding status. If the biological parent is seeking child support from a non-biological parent, the court must have substantial grounds to make this person pay for a child that is not legally their responsibility.
The Need For Legal Representation in LGBTQ Divorces
Some people try to handle dissolutions and divorces without the assistance of legal counsel. However, when dealing with same sex marriages and custody issues, many conflicts can arise. Though New York is fair concerning the division of assets and the support of children and adults, they still must follow the law. If you are in a same sex marriage and you want out, call a Brooklyn divorce attorney who specializes in these matters. You cannot afford to make a mistake in such substantial issues.
Are you in a same-sex union that you need to end? When marriages of equality became legal, so did the need for a way to end them. Since June 24, 2011, same-sex couples have been allowed to marry in the state of New York. Brooklyn has always prided itself on being open and diverse.
In June of 2015, marriage around the country became legal for the LGBT community. As with traditional marriages, sometimes things do not work out. When divorcing, the same laws that apply to a traditional couple also apply to the same-sex couple. However, the court altered the aspects of family law, and it takes a strong lawyer to fight for your rights to ensure you get a favorable outcome. Here are some common questions we receive on same-sex divorces:
1. Am I Entitled To Half Of Everything Like Retirement?
The court does not make one set of laws for gay and lesbian couples and another for monogamous. If you have been married the allotted time, then you will be entitled to the same benefits. The longer the marriage, the more benefits you are entitled too. If there was $15,000 in a bank account before you got married, and you added another $20,000 during the marriage, only the $20,000 could be split. The other money would be a pre-marital asset. If the party has proof to such, the other person cannot touch it.
2. We Adopted A Child, So Who Gets Custody?
A judge looks at the best interest of the child. Some people believe that the court favors the mother over the father. In a case where there are two mothers, it would be hard to decide. The old mother over father ruling is old school. The court uses a standard that looks for the “best interest of the child.” The parent with the stable job, financial security and better living arrangement would be the obvious choice. Even in same-sex divorces, the other party gets visitation rights. Do not think the court will not do some investigation to find the best situation either.
3. We Bought a House Together, But I Do Not Want It Anymore. What Do I Do?
As with most marriages, a home that is owned by both parties can be a source of contention. If one side wishes to retain the house, then they must pay you any equity that you have accrued then they must buy you out. In some cases, the other person will not have the money or resources to do so.
The court will often give them a time frame in which they must accomplish this task. If they cannot or do not pay your share, then they are in contempt of court. If there is a fight over the home and both parties want it, then the court will look to see if there is one person more financially stable than the other.
4. Can I Get Alimony or Spousal Support?
You will take comfort in knowing that you can receive alimony or spousal support. If you are in a relationship where you are disabled, or the other party provided for most of your needs, you are entitled to care. Judges like to see longevity to award such an amount. To receive this benefit, you must have little income or no way of providing for yourself at the level in which you are accustomed too.
5. Can We Get A Dissolution or Do We Have To File For divorce?
As previously stated above, the laws apply to everyone regardless of their sexuality, and there are not two different sets. If you can end things peacefully, then you do not need to file for divorce. There are many instances when dissolution is justified. You can also use mediation to help reach agreements and keep your costs down and process shortened.
Because we are a nation that believes in equality for all, you do not have to worry about losing assets, children, or your support when you file for a same-sex divorce. You should keep your focus on getting on with your life in the healthiest way possible. Any marriage failure is a bitter pill to swallow. You need a brooklyn law firm that is well versed in these matters and can assist you with your journey. They say that the only thing worse than being single is being married to the wrong one, so we can help you end your union and move on.
There are sometimes grounds for appealing a divorce settlement if you can prove that the settlement was unfair or harmful in some way. One common reason for such an appeal is if you signed the agreement under duress. This is not generally an easy claim, and you should seek advice and assistance from an attorney before proceeding.
The Appeals Process
Appealing the divorce is fairly simple from a procedural standpoint. You will need to file the necessary paperwork, which involves a claim or petition. This will outline your reasons for wanting the appeal. It must be created and filed correctly, and this can be confusing. It is best done with an attorney’s assistance. If the judge agrees to the appeal, then you will have the opportunity to present your full case. If you then win the appeal, you can begin the process of renegotiating the divorce settlement.
What Constitutes Duress?
The most important aspect of your appeal is to prove duress or undue influence. These are specific legal terms defined in the statutes of each state. What constitutes duress or influence varies by jurisdiction, changes in the law and other precedents, so it is always a good idea to discuss your situation with an attorney to see if you have the ability to prove duress.
All divorces involve some form of emotional and financial hardship and stress. Every spouse is under some sort of pressure to settle the case and get the divorce over with. In order to appeal based on duress, you will need to prove that your circumstances went beyond what the average person experiences during the divorce process. Importantly, the circumstances were so severe that you had no choice but to settle the divorce. Your freedom to act in your best interests was taken from you.
This can happen if your spouse makes a threat serious enough to cause you harm. That could mean he or she threatened you with physical violence or damage to your property. In many cases, the threat is more subtle. They could threaten to expose something about your background or nature that endangers your employment or your livelihood. Whether or not the threat is serious enough to constitute duress is usually up to a judge to determine. Threats that would cause annoyance or humiliation, but no substantive damage to your person or position, are unlikely to be considered serious enough.
In some jurisdictions, threats a person makes to themselves or other family members could also constitute duress. For example, if the person threatens to commit suicide this could be considered duress due to the relationship you have with them and the burdens their death would create. Threats made to your children, family members or friends may also be valid.
Some jurisdictions broaden the scope of duress to include a pattern of behavior or a steady increase in pressure over time rather than one or two specific incidents. This tends to be especially true in New York courts, where establishing the idea that increased pressure was applied steadily over time until the person finally broke down and agreed is generally considered sufficient grounds.
Providing Evidence of Duress
One of the most difficult parts of this sort of appeals process is providing proper and substantive evidence of your claims. It can be difficult proving exactly why and how someone is causing you duress. This is especially true if you do not have written or recorded evidence of what they have said or done that caused duress.
Different courts also have different expectations when it comes to presenting sufficient evidence. This can vary by jurisdiction according to the law. It may also vary by precedent, and it can even vary from judge to judge. For example, in some courts, the testimony of friends, colleagues or other witnesses may be sufficient, but a different court would require more direct evidence. It can be difficult to pin down exactly what constitutes sufficient evidence. This is an important part of your legal strategy and would be discussed with your attorney when you are planning the appeal. An attorney may be able to advise you on what evidence will be most useful and help you determine what sort of evidence you can collect.
Appealing a divorce on grounds of duress is an uphill battle, but it is certainly possible if you have the right evidence. It is important to present everything you have and discuss your case with an attorney before proceeding.
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