Last Updated on: 23rd June 2025, 11:58 pm
LGBT Family Law in New York: Understanding Your Rights After Marriage Equality
Just like heterosexual persons, LGBT (Lesbian, Gay, Bisexual and Transgendered) individuals face family law issues too. Family units and spouses in LGBT unions deal with issues such as adoption, divorce, prenuptial and postnuptial agreements, marriage, and any other family law-related issues. Currently, about 30 states in the US recognize same-sex marriage, including New York.
Marriage Equality in New York
New York passed the Marriage Equality Act in New York in 2011. Then, in 2013, the U.S. Supreme Court declared the Defense of Marriage Act unconstitutional, paving the way for same-sex marriages in all fifty states.
Despite the legalization of marriage in all fifty states, lgbt families still face unique challenges when it comes to demanding fair application of the law. The New York bar is dedicated to giving attorneys the tools to advocate on behalf of lgbt clients and their families in New York courts. At Spodek Law Group, we’re equally committed to helping you advocate for your rights to the full extent of the law.
Divorce Laws for Same-Sex Couples
Divorce laws are the same for all marriages in the state of New York, irrespective of the sexual orientation of your marriage. There may be a few differences in other states depending on whether or not these states permit and recognize same-sex marriages. There are a few instances where LGBT couples may encounter a few complications.
Residing in Another State
If you get married in New York while residing in New York and then move to another state where same-sex marriages are not recognized (Florida, for instance), you will not be able to get a divorce. You will have to relocate back to New York or move to another state that doesn’t prohibit same-sex marriages. Keep that in mind.
If you choose to move to another state — other than New York, you might want to check with the state’s residency requirements before you move. You will have to comply with the state’s residency requirements before you can file and finalize your divorce. In California, for instance, requires a residency of six months before a divorce can be filed.
Divorce and Custody
In many ways, divorce and custody matters in lgbt cases are often the same issues that all families face in the event of a divorce. That means determining custody, a parenting schedule and visitation. It means dividing assets and real property and determining whether spousal support is appropriate in the case.
| Family Law Issue |
Considerations for LGBT Couples |
Legal Requirements |
| Child Support |
The court must make determinations about child support in every divorce case involving minor children. Although it might seem like a simple math complication, a child support determination can be anything but simple. |
The court might have to investigate a parent’s real income especially in cases where a parent is self-employed or they have the help of an employer to try and hide their real income. |
| Adoption |
In some cases, parents might worry about their legal status when it comes to their children. They might have used a surrogate to have a child and worry about the child’s legal relationship to both parents. |
Parents can add legal protections to their rights by formally adopting the child in addition to the marriage relationship. That way, the child is a legal child of both parents by way of adoption as well as by marriage. |
| Mediation |
One option that you may have available to you during a divorce or other family law matter is mediation. This is a voluntary process that allows you to work with a trained mediator in order to develop a resolution that you both agree to in order to resolve the case. |
No one has to enter into an agreement during mediation. Rather, it’s an opportunity for the parties to discuss their differences in a way that might resolve the case without a court imposing a judgment. |
Child Custody Issues
Though all laws are subject to change at any given time, laws governing same-sex marriages tend to change faster relative to heterosexual marriages. It’s a relatively new area of US law, and any scenario that hasn’t been experienced before has the potential to initiate a review of current laws. For instance, it can get particularly confusing when it comes to issues to do with child custody.
Courts don’t have a lot of experience dealing with child custody issues in an LGBT union. There is a lot of bias when there are two moms or two dads. However, with good representation, there is a way of resolving this issue and depending on the situation, spouses can get joint custody. Such cases need representation from very experienced independent legal counsel even to keep up with the changing laws.
Prenuptial and Postnuptial Agreements
Both a prenuptial and postnuptial agreement have a similar purpose — to protect individual assets and property that a spouse may have brought into the marriage. It’s always a good idea to be prepared for the worst-case scenario, and couples can choose to use a prenuptial or postnuptial agreement to do so. These documents separate individual property from marital property — split in half in the event of a divorce. The only difference between the two is that a prenuptial agreement is signed before the wedding and a postnuptial agreement is signed after the wedding.
Legal Requirements for Prenuptial Agreements
In a prenuptial agreement, you and your spouse disclose to each other all the money and property you own before getting married. Then, you set forth the rights and responsibilities each of you will have during the marriage, including how you will divide your money and property in the event of divorce or the death of one or both of you.
- The agreement must be in writing
- Each spouse must be represented by their own separate legal counsel
- Both partners must sign it
- It must be witnessed by a notary public
- Full disclosure of assets is required
- The agreement must be fair and reasonable
Adoption Services for LGBT Couples
In New York and New Jersey, unmarried same-sex couples have the same legal right and opportunity to form their family through adoption as single persons and different-sex unmarried couples. Whether you want to conceive a child through assisted reproduction with your partner, adopt a child through a domestic or international adoption, or adopt your spouse or partner’s child, Rumbold & Seidelman can help.
In the event of a divorce, both parents have parental rights and an obligation to support the child financially.
Why You Need a Lawyer
LGBT couples face similar family issues that heterosexual couples face. At some point, you will certainly need the services of a family lawyer with a lot of experience on LGTB matters. Whether you are adopting a child, filing for divorce, or drafting a postnuptial agreement, you will require the services of a lawyer. Before you hire a lawyer, do your homework. Make sure they have enough experience in same-sex marriages. If you live in Staten Island, look no further than Staten Island Gay & LGBT Family Law Lawyers.
Other Services
Family law issues don’t happen in a vacuum. Our staten island gay lbgt family law lawyers want to make sure that you plan for your family in the best way possible. That means you may need to prepare a power of attorney that reinforces your partner’s ability to act on your behalf including making medical decisions in the event that you’re incapacitated. You can also work with us to create a will that names a guardian for your children if it should become necessary. We know that no two cases are alike. We want to get to know you and help you make the best possible plan to give you peace of mind for your growing family.
Laws Keep Changing
Lgbt laws are constantly changing. As we continue to make progress, our team of enthusiastic attorneys can help you understand the current state of New York law and how it applies to you. You may have multiple ways to meet your goals, and we can help you determine the best plan for your case. We offer compassionate and aggressive legal services that help you take full advantage of your options under the law. We want you to have the confidence to know that you’re making the best decisions as your case moves through the courts. If you’re facing an lgbt family law issue in staten island, please contact us today.
How We Can Help
The court may have to make a judgement call about a parent’s true ability to work. Our team of Staten Island lgbt family law attorneys can help you gather the evidence to present your case to the judge in the best possible light.
The prenuptial agreement takes the control over your property and assets away from the state and places it in the hands of you and your spouse. A prenuptial agreement is valid and can be enforced as long as it protects both you and your spouse and it was entered into with a full and fair disclosure of all assets by both you and your spouse. The agreement must also be executed and acknowledged with the full formality required for a property deed to be recorded.
Benefits of Legal Representation
- Experience with changing LGBT laws
- Understanding of unique custody challenges
- Knowledge of adoption procedures
- Expertise in prenuptial agreements
- Mediation and negotiation skills
- Protection of your parental rights
In any marriage, you may want to consider creating a prenuptial or postnuptial agreement. This is basically a contract for people who are about to get married or who are already married. The contract spells out what happens financially if the marriage dissolves.
A prenuptial agreement can help you define separate property that one person brings into a marriage. It can determine who keeps the marital home. It can divide assets and either limit or guarantee spousal support.
The one thing that a prenuptial agreement can’t do is determine child custody. Children have a right to have a court act in their best interests. This isn’t something that parents can make an agreement about in advance. In addition, parents have an obligation to support their children financially, and this isn’t something that the parties can waive away.
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