Same Sex Divorce


In July of 2011, New York became the sixth state to allow same-sex marriage, passing the Marriage Equality Act. New York, and now the rest of the United States, acknowledges same-sex marriage as a legitimate legal union and provides gay and lesbian couples with the same rights as heterosexual married couples. With the development of gay marriage came another legal issue, though: same-sex divorce and separation.

Same-sex couples going through a divorce need to address common divorce issues, such as:

• Child custody

• Child support

• Property division

• Spousal support

• Debt division


Same-sex couples face the same divorce challenges as heterosexual couples, however, the legalities surrounding these issues can be more complicated. Child custody, spousal maintenance, property division, and other divorce-related problems may become very complex during the same-sex divorce process.

Child Custody About 25% of gay and lesbian couples in the U.S. raise children. Same-sex child custody is governed by the same laws that govern traditional child custody. If the child was adopted or born into the marriage through in-vitro fertilization, the state will probably recognize both spouses as legal parents. If the child was brought into the marriage by one spouse from a previous relationship, though, child custody could become very difficult.

Property Division   Although New York law governs same-sex marriage and divorce, these laws do not oversee all facets of property and asset division. Common problems include: dividing pensions, dividing 401(k)s, and dealing with federal tax complications. For example, heterosexual couples may divide a retirement account or pension without prompting early withdrawal fees or taxes. Gay & lesbian couples do not have this privilege. Similarly, heterosexual couples can avoid capital gains taxes when they exchange property; same-sex couples cannot avoid these expenses.

Spousal Support   As with straight couples, gay & lesbian couples may establish spousal support when they terminate their marriages. However, alimony can be financially detrimental because it is not tax deductible, according to federal law.

Same-sex divorce in New York is, emotionally speaking, the same as straight divorce.