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Issues same-sex couples face when getting a divorce

On Behalf of | Jul 16, 2022 | Divorce

For generations, people in the LGBTQ+ community have fought for equal rights, including the right to legally marry. Same-sex marriage has been legal in New York since 2011 and in all U.S. states since 2015.

When it comes to divorce, same-sex couples face some complex issues that opposite-sex couples may not.

Marital property

Many same-sex couples have been together for a long time and formalized their relationships with religious ceremonies or domestic partnerships before legal marriage was an option. This can complicate things when dividing marital property during a divorce.

Common law marriages

In states that recognize common law marriage, marital property might include assets you obtained before legally marrying. New York does not grant common law marriages but does recognize ones formed in other states.

Domestic partnerships

Domestic partnership in New York offers some, but not all, of the same legal rights as marriage. If you were in a domestic partnership before you married, those assets may count as marital property.

Commingled property

If you were together a long time before marrying, you have probably commingled some of your assets. For example, money you inherit is separate property, but if you invest it in a jointly-owned account, it can become marital property.

Parenting and custody

In many LGBTQ+ families, one parent is the children’s biological parent. Under state law, when a child is born to a married couple, the child is legitimately the child of both parents. For parents who were not married when the child was born, custody issues can be more complicated, but non-biological parents can still seek custody and visitation.

Although laws are constantly evolving to be more inclusive, divorce can still be confusing for same-sex couples. A divorce lawyer with experience in LGBTQ+ divorces can help you work through these difficult issues.