As a Divorce Lawyer on Long Island, I understand that legal same-sex marriage is relatively new on Long Island, and that many people in these relationships have questions about what to expect should they need to get divorced. Since the same-sex marriage is relatively new in Nassau County and Suffolk County, the process of same-sex divorce has not yet been thoroughly explored by the courts.
For heterosexual couples that wish to obtain a divorce on Long Island, the process is relatively straightforward and predictable. These types of divorces in New York have been streamlined as a result of years of legislative refinement and judicial precedent. Spouses in same-sex marriages, however, may face a greater amount of uncertainty and ambiguity when facing divorce due to the more novel legal concept of the same-sex marriage.
Supreme Court Made Same-Sex Marriage Legal Throughout the U.S.
Since New York passed the Marriage Equality Act in 2011, which allowed same-sex marriage in the state, same-sex couples who married in New York and then moved to another state where same-sex marriage was not allowed faced long waits and a complicated process to divorce. This year, the Supreme Court of the United States ruled that same-sex marriage was right nationwide. This decision opened the door for same-sex spouses to seek divorce nationwide. By law, same-sex couples are afforded the same rights and protections as heterosexual couples. Nevertheless, there are often unique issues that arise in the context of same-sex divorce. The future of the judicial trend toward equality is surely optimistic, but the ins-and-outs of this developing area of law remain to be seen.
Same-Sex Couples Have Same Legal Rights As Opposite-Sex Couples
Generally speaking, the process of divorce will be the same for same-sex couples as traditional couples. Same-sex couples will decide whether to make private agreements regarding division of assets, child custody and visitation, and financial support. They will choose whether to commit to divorce mediation to find agreement on these issues, or pursue divorce litigation in court. Division of assets will be determined by agreement or equitable distribution. The same paperwork will be required, and the courts will use the same formulas to determine the best outcome. The differences and obstacles will likely lie in certain issues that will be unique to each couple. Nevertheless, same-sex couples often face obstacles in the process of divorce.
Child Custody, Visitation & Support Can Be Complex In Same-Sex Divorce
One problem that has arisen in the context of same-sex divorce, for example, is the complexity of child custody and visitation when only one spouse is the legal parent of the child. Even if a spouse has raised a child and shares a loving and meaningful relationship with the child, a lack of legal status to parenthood will prevent that spouse from having rights to custody and visitation during divorce. Financial obligations for child support and spousal support are also unclear in these cases. If, however, both parents are the legal parents, such as in cases where both parents adopted the child, or where legal parental status was conferred through marriage or a separate parental action, the arrangement may be more straightforward.
Pre- or Post-Nuptial Agreements Can Help
Another issue that arises in the context of same-sex marriage is the division of assets that are co-mingled but not jointly held. Property settlements, in such a case, might be particularly difficult. Of course, this issue may also arise in any divorce, but is more likely to occur in same-sex marriages since they are relatively new. Couples can avoid this pitfall by entering into a pre- or post-nuptial agreement to address division of property in the case of divorce.
Although Legal, There Is Still Some Uncertainty in Suffolk County and Nassau County Courts on Long Island, NY
Divorce among same-sex couples on Long Island is now inevitable. Although same-sex couples have found support in Nassau County and Suffolk County courts, there remains a substantial amount of legal uncertainty in the area of same-sex marriage and divorce. Here in New York, same-sex marriage has been legalized, allowing same-sex spouses and their families to share in all of the same rights, privileges, and, unfortunately, pitfalls, of heterosexual marriage as well.
Divorce Mediation Can Help Iron Out Issues Outside of Suffolk County or Nassau County Court
Of course, if it is possible to resolve the terms of your divorce privately or with the assistance of a neutral third party divorce mediator, it is strongly recommended that you do so. Avoiding costly and lengthy divorce litigation is likely to save you, your partner, and your children a great amount of emotional and financial distress.
Long Island Divorce Attorneys Can Help Same-Sex Couples Divorce
The experienced and compassionate Long Island Divorce Attorneys at Hornberger Verbitsky, P.C. can help same-sex couples through the complex avenues of divorce in Nassau County or Suffolk County. Our attorneys have successfully represented nontraditional families and achieved positive outcomes. If you are in Nassau County, Suffolk County, or any of the five boroughs of New York City, please call us at 631-923-1910 with any questions about your potential or current same-sex divorce.
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.