Same-Sex Divorce Presents Unique Difficulties Due to Conflicts Between Laws in New York and Other States

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Same-sex marriage has made tremendous strides in recent years, with all but 13 states allowing same-sex couples to get married. The U.S. Supreme Court is expected to rule this summer on the question of whether states may prohibit same-sex couples from marrying in Obergefell v. Hodges. New York has recognized same-sex marriages from other states since 2008, and legislation passed in 2011 formally recognized same-sex marriage. Since laws continue to vary from state to state, however, the issue remains highly complicated and difficult, especially with regard to legally married couples who want to divorce. Many states that do not allow same-sex couples to marry also do not allow them to divorce. Other states have allowed individual couples to divorce despite not officially recognizing their marriage.

New York began recognizing out-of-state same-sex marriages with the decision in Martinez v. County of Monroe, 2008 NY Slip Op 00909, which specifically dealt with spousal benefits for state employees. The court held that, since New York recognizes out-of-state opposite-sex marriages, it must recognize same-sex marriages legally performed in other states. A New York court granted a divorce to a same-sex couple, who were legally married in Canada, around the same time in Beth R. v. Donna M., 2008 NY Slip Op 28091. In 2011, the New York Legislature passed the Marriage Equality Act, which amended the New York Domestic Relations Law to allow same-sex marriage within the state. See e.g., N.Y. Dom. Rel. L. § 10-A.

The U.S. Supreme Court issued two rulings on same-sex marriage in 2013:  United States v. Windsor, which struck down the federal Defense of Marriage Act under the Due Process Clause of the Fifth Amendment, and Hollingsworth v. Perry, which struck down a California ballot initiative that banned same-sex marriage. The California case was decided on a narrow question of standing, so the Supreme Court has never definitively ruled on same-sex marriage itself. As for state laws, according to the Human Rights Campaign, 37 states and the District of Columbia currently recognize same-sex marriage.

A major problem presents itself for same-sex couples who marry in a state that recognizes same-sex marriage but then move to a state that does not recognize it. Under the Supreme Court’s decision in Windsor, federal benefits are ostensibly available to same-sex couples all over the country, but state law can present a major hurdle. This is particularly true with regard to divorce, which is handled exclusively at the state level. Couples wanting to divorce have found themselves in a position where they must establish residence in a state that recognizes their marriage for the sole purpose of obtaining a divorce.

Same-sex divorces are becoming more common as same-sex marriage gains acceptance. Courts in Florida, South Carolina, and Alabama recently granted those states’ first divorces to same-sex couples. A court in Kentucky granted a same-sex divorce even though state law continues to limit marriage to opposite-sex couples. In Tennessee, on the other hand, a court denied a couple’s petition for divorce based on the state’s marriage laws. The Supreme Court’s decision in Obergefell might resolve these conflicting laws.

A New York divorce proceeding requires careful planning and preparation, with close attention to a wide range of concerns. An experienced and skilled same-sex divorce attorney can help you protect your assets and understand your rights and responsibilities. Ingrid Gherman has represented clients in family law cases in New York City for the past 30 years. Contact us today online or at (212) 941-0767 to schedule a confidential consultation to discuss your case.

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Husband Seeks Summary Judgment in New York Divorce Case; Appellate Court Explains Why He Cannot Do That, New York Divorce Attorney Blog, March 24, 2015

Appellate Court Affirms Denial of Motion to Voluntarily Discontinue New York Divorce Case on First Day of Trial, New York Divorce Attorney Blog, March 13, 2015

New York Judge Criticizes Spouse’s “Emotional Agenda” in Proceeding for Division of Marital Property, New York Divorce Attorney Blog, February 17, 2015

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