Legally reviewed by Elliot S. Raimondo - Raimondo & Sundquist LLP

When a married couple decides to get a divorce, several significant issues will have to be resolved before they can formally end their marriage. One of the most important of these issues is determining what will happen to the property they have accumulated over the years. Although New York applies the same equitable distribution laws to same-sex and opposite-sex divorces, same-sex couples can face certain unique complications, especially if they lived together and shared assets for many years before they were legally permitted to marry. Please continue reading to learn more about how property is divided in a same-sex divorce in New York and how a knowledgeable Buffalo LGBTQ+ family lawyer from Raimondo & Sundquist LLP can help protect your financial interests. Here are some of the questions you may have:

Does New York divide marital property equally?

New York is an equitable distribution state. Simply put, this means that marital property is divided in a manner the court considers fair, which does not necessarily mean that each spouse will receive exactly half.

Marital property generally includes assets and debts obtained by either spouse from the date of the marriage until the divorce action begins. This is usually true regardless of whose name is listed on the account, title, deed, or other ownership document. Some common examples of marital property include the following:

  • The marital home and other real estate
  • Checking and savings accounts
  • Retirement accounts, pensions, and employment benefits
  • Businesses and professional practices
  • Vehicles, furnishings, artwork, and other valuable possessions
  • Stocks, investments, and deferred compensation
  • Debts accumulated during the marriage

When determining how these assets should be distributed, New York courts will consider several factors, including the length of the marriage, each spouse’s income, their age and health, and the financial and nonfinancial contributions each spouse made. Therefore, a spouse who stayed home to raise children or care for the household may still be viewed as having contributed substantially to the marriage, even if the other spouse earned most of the income.

What property can remain separate during the divorce?

Separate property is generally not subject to equitable distribution, meaning it may remain with the spouse who owns it. Separate property can include the following:

  • Property acquired before the marriage
  • An inheritance received by one spouse
  • A gift given by someone other than the other spouse
  • Compensation awarded for certain personal injuries
  • Property designated as separate in a valid prenuptial or postnuptial agreement
  • Property purchased with separate funds that can be clearly traced

That being said, determining whether an asset is truly separate is not always as easy as it may initially seem. For example, if one spouse deposits an inheritance into a jointly used bank account, those funds may become commingled with marital property, thereby making the inheritance more difficult to trace and protect.

Furthermore, an increase in the value of separate property may be considered marital property when the other spouse contributed to that increase. These contributions may involve working for a spouse’s business, helping improve an investment property, caring for the children, or otherwise supporting the spouse who owns the asset.

Why can the date of marriage matter for same-sex couples?

For many same-sex couples, their relationship began long before they had the legal right to marry. They may have purchased a home, combined their finances, raised children, or built a business together during that time. Unfortunately, living together does not ordinarily provide the same equitable distribution rights as being legally married.

Therefore, property acquired before the legal marriage may initially be classified as separate, even if both parties treated it as shared property throughout their relationship. However, this does not always mean that the spouse whose name is missing from the title has no possible claim.

Ultimately, every same-sex divorce involves its own financial history, and even seemingly minor details can have a significant impact on property distribution. A knowledgeable New York divorce and family law attorney can examine when each asset was acquired, how it was used, whether it increased in value, and what contributions each spouse made. If you are preparing for a same-sex divorce, you should strongly consider speaking with an attorney who can assess your circumstances and fight for the fair division of your marital property. Contact Raimondo & Sundquist LLP for an initial consultation today.