Who Should Create a Trust?
Relationships are deeply personal, and when they begin to unravel, the legal consequences can feel anything but. If you are part of the LGBTQ+ community and are facing divorce, a custody dispute, or uncertainty regarding your parental rights, you likely have a number of pressing questions about where you stand and what happens next. Family law is complicated enough on its own. When you factor in evolving statutes, historical changes in marriage recognition, and issues of parentage that may not apply to every couple, the situation can quickly become overwhelming. Contact the dedicated and compassionate LGBTQ+ family lawyers here at Raimondo & Sundquist LLP today so we can discuss your case and work to obtain a positive outcome on your behalf.
For the most part, yes. Under current New York law, same-sex marriages and divorces are treated the same as opposite-sex marriages. That said, there are certain historical realities and practical issues that may still impact some couples today.
New York formally recognized same-sex marriage through the Marriage Equality Act in 2011. From that point forward, same-sex spouses were granted the same legal rights, responsibilities, and protections as any other married couple under New York’s Domestic Relations Law.
This means that same-sex spouses have equal rights when it comes to divorce, equitable distribution of marital property, spousal maintenance, and inheritance rights.
In 2015, the United States Supreme Court issued its landmark ruling in Obergefell v. Hodges, which required all states to recognize same-sex marriages. This decision ensured that marriages performed in New York would be recognized nationwide and that marriages performed elsewhere would be honored here.
For divorce purposes, this is significant. If you were legally married in another state, New York courts will recognize that marriage and allow you to file for divorce here, so long as you satisfy the state’s residency requirements.
Before filing for divorce in New York, you must meet specific residency requirements. Generally speaking, one of the following must apply:
New York permits both no-fault and fault-based divorce. The most common ground cited today is an irretrievable breakdown of the marriage for at least six months. In practical terms, this means the relationship has broken down beyond repair. Fault-based grounds, including cruel and inhuman treatment, abandonment, adultery, or imprisonment, are also available. However, pursuing fault grounds often complicates the process and rarely affects the ultimate outcome in a meaningful way.
New York is an equitable distribution state. This does not mean property is automatically divided equally. Rather, property is divided in a manner the court considers fair after evaluating statutory factors, such as the following:
Sexual orientation has no bearing on this analysis.
Marital property generally includes assets and debts acquired during the marriage, regardless of whose name appears on the account or title. Marital property is what is subject to equitable distribution in a divorce. Separate property often includes assets owned before the marriage, inheritances, and certain gifts. That said, complications may occur when:
Courts will examine documentation, account statements, deeds, tax returns, and other financial records to determine what portion of an asset is subject to distribution.
Spousal maintenance, often referred to as alimony, is calculated using statutory formulas and discretionary factors. Courts look at income disparities, earning capacity, the standard of living established during the marriage, and the duration of the marriage. The objective is fairness.
Child custody is frequently the most emotionally charged aspect of any divorce. For LGBTQ+ parents, additional considerations sometimes come into play, particularly when questions of parentage crop up. New York courts determine custody based on the best interests of the child. However, before custody can even be addressed, legal parentage must be clear.
In some LGBTQ+ families, only one parent is biologically related to the child. Biology alone does not automatically determine custody outcomes, but legal recognition of both parents is critical. Without formal legal status, a non-biological parent may face standing issues.
Second-parent adoption allows a non-biological parent to legally adopt the child without terminating the biological parent’s rights. This step provides long-term legal security and prevents future disputes over parental standing.
New York law recognizes children conceived through assisted reproductive technology, and proper documentation, written agreements, and statutory presumptions can establish parentage for intended parents. The absence of clear documentation, however, can lead to potential disputes.
New York permits compensated gestational surrogacy under carefully regulated statutory safeguards. Properly drafted surrogacy agreements can establish intended parents’ rights from the outset, reducing uncertainty later.
Parentage may be established through adoption, acknowledgment of parentage, marital presumptions, or court orders.
In certain circumstances, New York courts have recognized standing for non-biological parents who can demonstrate a mutual agreement to conceive and raise a child together and who developed a bonded parental relationship.
As with any family, custody orders may be modified if there has been a substantial change in circumstances and the requested change serves the child’s best interests. Relocation, changes in employment, or concerns about parental fitness may justify revisiting an existing order.
If you are facing divorce or another family law matter, our LGBTQ+ family lawyers are here to help. Contact Raimondo & Sundquist LLP for an initial consultation today so we can discuss your case.
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