Ever since the United States Supreme Court ruling in 2015 in the landmark Obergefell v. Hodges case, same sex divorce is treated equivalently to heterosexual divorce in the eyes of the law. Before then, gay couples who travelled to states where same sex marriage wasn’t yet legalized, were banned from getting a divorce in that state. State governments did not know how to treat the divorce process when gay marriage hadn’t yet been standardized. Gay marriage wasn’t recognized as legally valid for these states and thus, there was no way to process divorces.
If one of the individuals in a same sex marriage went into another state that did not allow same sex marriage, court orders across these states could not be enforced. The 2015 ruling protects marriage equality federally. Same-sex marriages performed in one state are legally valid in other states.
Potential Current Issues, Prior to the Obergefell v. Hodges Ruling
Same sex couples looking to get a divorce after the ruling may still face some issues in the legal divorce process. In particular, for same sex couples who did not have the option to get married, but opted for another arrangement such as, a civil union or a domestic partnership may have trouble dissolving the arrangement. For those in Rhode Island and Delaware who opted for a civil union, are now legally considered married.
Governments currently do not have a clear process to handle these types of alternative arrangements. Attaining a divorce in these cases might be tricky, depending on the circumstances.
Getting a Same Sex Divorce in New York State
How are same sex divorces handled in New York state?
Same sex divorces are handled in the same manner as a heterosexual divorce. One of the spouses must have resided in New York for at least a year. A couple must file divorce papers, and create the terms of separation. The terms of separation is a separation agreement, in which you resolve and settle on issues involving:
- How the assets will be distributed
- How the debts will be distributed
- Child custody, child support and visitation
- Potential spousal support
If the couple cannot reach an agreement, matters will have to be handled in court.
Do I need to hire a same sex divorce lawyer?
It would be smart for each individual to hire a reputable and knowledgeable same sex divorce lawyer if terms cannot be agreed upon or there are other, significant issues and problems. Lawyers can help navigate troublesome negotiation if there are personality challenges. You’ll want a same sex divorce lawyer if:
- a spouse is lying about certain issues
- there is abuse involved (a lawyer will help you get protection)
- a spouse is vindictive
- a spouse hired their own attorney
- there are complicated issues involving children and finances
What should I look for in a same sex divorce attorney?
You will want to hire a same sex divorce lawyer who is committed to protecting the rights of individuals throughout the divorce process. They must be well-versed in all the complexities involved in same sex divorce legal matters. The attorney must stay current with the dynamic trends and changes involving same sex divorces that are specific to New York state.