Same Sex Couples and the Law

Beginning on July 24, 2011 same-sex couples could marry in the State of New York. Even before that, New York recognized same-sex marriages that were performed in other states or countries when couples were looking to divorce.  On the surface, same-sex divorces are much the same as opposite-sex divorces.  The exact same laws apply.  However, there are a few situation where those same laws have unexpected results in the case of same-sex couples.

Jurisdiction – Unlike many other states that enacted same-sex marriage, New York does not have a residency requirement for people who want to marry in New York.  Thus many same-sex couples came to New York for destination weddings.  Upon divorce, the same does not apply.  Same-sex couples must meet the same jurisdictional requirements of anyone else wishing to divorce in New York.  That usually requires at least one of the spouses to reside in New York for at least a year.

Children – In New York there is a legal presumption that children born or conceived during a marriage are the children of the married couple.  That allows both same-sex parents to be deemed parents of any child of the marriage.  But what about children born prior to the parties marrying?  In the case of a an opposite-sex couple, genetic marker (DNA) testing can be done to establish paternity, but in a same-sex marriage the other parent is not genetically related.  Many couples had the other parent adopt the child so that both were officially parents.  If that was not done, the non-genetic parent might be left unable to apply to a court to have a relationship with that child.  Parents, grandparents and siblings are the only people who have standing to apply to visit with a child. 

Changes in Federal Law – Tax returns, Social Security benefits and many other rights and privileges afforded to spouses were greatly affected with the decision in United States v. Windsor, which struck down the Defense of Marriage Act’s limitation of marriage to one man and one woman for all Federal laws.  There remain some lingering issues from the dual status of same-sex married people who were deemed married under state law and not married under Federal law. Those can arise at the time of divorce, such as questions regarding prior years’ tax filings and eligibility to claim Social Security retirement benefits based on an ex-spouse’s wages.  

The attorneys and mediators at Pusatier, Sherman, Abbott & Sugarman, LLP are sensitive to the unique needs of all couples during times of divorce, including same-sex couples.  Contact us for a free half-hour consultation to find out how we can meet your unique needs.

By Audrey Herman | Published November 10, 2015 | Posted in Divorce & Family Law | Tagged federal law, jurisdiction, retirement benefits, same-sex divorce, same-sex marriage, tax eligibility