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As we know all too well, not everyone gets to experience their fairytale romance ending. Even though overall divorce rates in America are decreasing each year, “happily ever after” turns into shattered dreams for many couples, including same-sex married couples. In New York, the divorce between a same-sex couple is treated the same way as it is for an opposite-sex couple. Legal divorce documents must be filed through either contested, uncontested, or mediated methods. As with opposite-sex couples, only one spouse needs to file divorce papers, and at least one spouse needs to have lived in New York for a period of one year.
As some same-sex couples are finding out, divorce can be as difficult as marriage, if not more so. In fact, if you do an online search for “gay divorce lawyers”, you will simply find a lot of gay family lawyers. However, gay/LGBT family law lawyers are now becoming much better equipped to help with same-sex divorce procedures as divorce rates for same-sex couples are on the rise.
Issue That Same-sex Couples Must Settle On
As is the case with heterosexual married couples, same-sex couples who are filing for a divorce must settle on a handful of major issues. In order to legally separate, couples need to come to an agreement on the following issues:
- Sharing of debt
- Distribution of assets
- Child support
- Child custody
- Visitation arrangements with children
- Spousal support
Asset and debt distribution between a couple filing for divorce has to be resolved according to a state’s equitable distribution statutes. For example, in the state of New York, only marital property is subjected to division by the court. Personal property owned by the individual cannot be divided. Businesses and professional practices are subject to equitable distribution but are often much more difficult to divide in divorce cases, which is why it is important that you hire a family law attorney who has special knowledge of same-sex marriage and divorce issues.
Child custody can be difficult to arrange, and some laws will vary depending on the state you live in and your circumstances. If you and your partner are both considered to be your child’s legal parents, the courts will generally treat you the same way as they would opposite-sex couples. However, in many states throughout the U.S., second parents do not have legal rights to children and may not even be able to seek visitation.
Divorcing in Another State
In the recent past, same-sex couples ran into a lot of difficulties when trying to divorce in a different state than New York. This all changed with the Supreme Court’s decision in the 2015 Obergefell v. Hodges case, in which the court decided by a vote of 5-4 that the 14th Amendment’s Equal Protection Clause and the Due Process Clause guarantee same-sex couples the same right to marry as opposite-sex couples.
Prior to this decision, many same-sex couples had to travel to New York to get married, then returned home to other states. Of course, any state that did not legalize gay marriage also did not legalize gay divorce, thereby causing extra complications for same-sex married couples looking to separate. In the aftermath of the Supreme Court’s landmark decision in Obergefell v. Hodges, gay marriage and divorce are recognized in all states so long as couples meet their states’ residency regulations.
Same-sex Couple Statistics
There is a nationwide study by the U.S. Census Bureau called American Community Survey, or ACS for short. ACS contains details from surveys and the 2010 U.S. Census. It includes a brief on Same-sex Couple Households which is a great source of statistics on same-sex couples. These statistics are organized by state and same-sex couples with children. Here is some information from the report:
- There are 594,000 same-sex couples in the U.S
- There are 169,000 registered domestic partners
- 152,000 (25.7 percent) spouses int he country reside in in same-sex households
- 115,000 of these 594,000 same-sex couples have children in their household
- Eighty-nine percent of the 115,000 are the biological children of either partner
Divorce and Child Custody for LGBT Couples
There is no unique or separate “equality” law when it comes to child custody decisions in a divorce matter involving same-sex spouses. As is customary, the “ interests of the child” benchmark is utilized in making custody decisions in all New York Divorce cases.
The interests of the child standard requires the consideration of a number of factors in making child custody determinations. These include taking a look at which spouse was generally the primary caretaker of their children in the household, the residential situation of each spouse, and the overall physical, mental, and emotional wellbeing of the parties.
Adoptions for Same-sex Couples in New York
The State of New York permits LGBT individuals and couples to adopt children. Here are several of the LGBT persons that are legally allowed petition family court for adoption:
- LGBT individuals
- Same-sex couples
- Someone wanting to adopt their same-sex partner’s children
- Someone wanting to adopt children of the relationship
LGBT individuals and couples are encouraged to talk to their Manhattan gay LGBT family lawyers for advice about adopting. Their legal counsel will be familiar with the facts about family code legislation. They should be well equipped to answer any questions about adoptions. The attorneys will take care of all the documents and paperwork to help you succeed in a legal adoption.
What About Civil Unions and Domestic Partnerships?
Many states do not recognize civil unions and domestic partnerships in the same way that they do legalized marriage. In the state of New York, domestic partnerships can be terminated by either person as long as they file a termination statement or enter into marriage with either the same partner or someone else, as this automatically invalidates a domestic partnership.
Divorce is an incredibly painful and confusing life event to experience for any couple, same-sex or opposite-sex. Divorce has serious ramifications, including financial burdens or loss of finances, negative impacts on children, can cause significant emotional distress for separating couples, and, of course, can become a legal nightmare.
If you are considering filing for divorce or have had your spouse file for divorce already, having a family law lawyer with special knowledge of issues facing same-sex couples on your side can make the entire process a bit easier to go through. If you live in the Manhattan area, the attorneys at Spodek Law Group are ready to assist you with your divorce case.
Same-sex marriage is legal in New York, and it has been since 2011. However, with the changing marital laws comes necessary changes in divorce and other family law topics. The world is changing every day, but there are still family law practices involved the gay and LGBT community that require some amendments and changes. If you are a gay or LGBT family, you might not know your rights are not always protected or even specifically defined in New York. There are legal issues you might encounter, and a gay and LGBT family law attorney can help.
Adoption is one of the biggest legal hurdles for gay and LGBT couples. The problem lies in many adoption agencies more so than New York laws. Adoption agencies are permitted to work within their own rights, their own beliefs, and even the laws in the state in which they are found. If you choose to adopt a child in New York, you might not find you have the same experience as you would using an adoption agency in a state in which the laws are different.
For example, some adoption agencies are faith or religion-based, and they might not work with a couple who is same-sex or even an individual who is gay. This causes problems in the adoption process, and you do have legal rights. An attorney can help walk you through your rights to find out what you can do to help adopt a child and begin a family of your own.
State laws are much more complicated when it comes to gay and LGBT couples. You might not have a traditional family, but the state in which you are working to move, to live, to obtain insurance, or even to adopt a child might not recognize your situation. Some states do, and other states have different laws. An attorney can help walk you through the process of navigating state laws whether they are New York state laws or laws in other states.
This is a problem for many couples in New York as many work in the city but reside outside the city. Many Manhattan workers live in surrounding states where the laws are different. This calls for an attorney to work with and for you to help you fight for your rights starting a family or even finding health insurance as a gay or LGBT person or family.
Marital and divorce Law
The good news for many gay and LGBT couples is the laws are very much on your side when it comes to marriage and divorce. Since same-sex marriages became legal in 2011, the laws have changed tremendously to help couples marry and divorce. While the ideal situation is your marriage will last a lifetime, it’s not always possible.
The biggest problem in any same-sex divorce case is typically the children. Unlike a traditional marriage when the child is both the husband and the wife’s biological child, this is not possible in a same-sex marriage. The child might be adopted by one partner and fully related to the other partner. One partner may have carried the baby but the baby is biologically related to the other partner. This can cause the divorce process to become more complicated if you are not going through an amicable divorce and you want to fight for your child.
Some LGBT couples want to go through gender reassignment surgery. The process is not always easy, it’s not always understandable, and you do have rights you should be aware of. These rights are designed to protect you and to protect your family as you go through this process. A gay and LGBT family law attorney works to help you understand your rights and what you can do to protect yourself during the transition. The process can be made more complicated by the legal issues many people don’t even realize exist, but an attorney can help you navigate these muddy waters.
You’re Not Alone
Oftentimes people in the gay and LGBT community feel alone and on their own when going through many of the issues involved in family law. You are not alone. There are attorneys who specialize specifically in the gay and LGBT community and your rights. Call an attorney to find out what we can help you with, how we can make the process easier, and what rights you are entitled to in and around New York. You have rights, and you have the right to fight for them and for your family.