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The Complexities of Same-Sex Divorce

Dec. 18, 2018

Your right to marry your partner came after much struggle and suffering, as is true with the winning of many important rights. When the U.S. Supreme Court delivered its landmark ruling legalizing same-sex marriage in all 50 states, you and your partner could enjoy the same protections as opposite-sex couples, including tax benefits, insurance coverage and surrogate authority for medical decisions.

You also now have the right to end your marriage through divorce. While this is often a painful decision for any married couple, you may be one of the many same-sex spouses whose circumstances make for a very complicated divorce.

A Tangle of Issues

While New York allowed same-sex partners to marry several years before federal law legalized it, you and your partner may have been together for years or decades prior to this. Like many partners, you may have shared a private commitment to each other, purchased property and accumulated assets as a couple. You may even have adopted and raised children together.

The complications you face now as you consider divorce revolve around determining the dates when your relationship began. While you were not married in the years prior to the legalization of same-sex marriage, those years may count in some circumstances toward deciding how to divide your assets, particularly retirement funds and their tax ramifications. They may also affect any claims for alimony.

Children and Other Matters

If you or your spouse adopted a child as a single person before you were married, you may have agreed to raise the child together despite only one of you being the legal parent. Your divorce could effectively sever that relationship leaving the former partner with no parental rights. If you are the adoptive parent, you may want a clean break from your spouse, but this may not be in the best interests of your children who have known your partner as a parent perhaps their whole lives.

No one can summarize or generalize the unique aspects of your relationship, marriage and divorce, and you undoubtedly have many delicate matters to resolve as you go through the divorce process. You and your partner may be able to work through some of these matters with careful negotiation, but it is important to ensure your rights are protected. Seeking the assistance of an attorney who is dedicated to family law issues related to same-sex partners is a wise move to make at any stage of the divorce.