Same-Sex Divorce in New York State

Just like Nirvana and Nine Inch Nails, I was into LGBT law WAY before it was cool. When the firm opened our doors in 2002 we were among the first in New York to seek out LGBT clients and to help educate the public regarding the myriad of complexities facing same-sex couples seeking to dissolve their relationships. We held poorly advertised, yet packed seminars on “Gay and Lesbian Legal Issues” at an Episcopal church. We handed out purple balloons with the firm’s logo at the first Rockland Pride event in Nyack, New York.

Back then, when a same-sex couple was dissolving their relationship the Courts weren’t sure what to do. Some Judges applied simple property theory (“Whose name is the house in? Okay…it’s his house.”) Some Judges applied strict contract principles (“Who provided the funds for the house? Was there a written agreement? Okay…it’s her house.”)

Some avant garde Judges applied the Business Corporation Law and tried to treat the failed relationship like a two partners splitting up a business (“Who paid for the house? Who fixed up the house and kept it maintained Who tended to the rose garden? Okay…they’re splitting it 50/50″). Some Judges just scratched their heads and wistfully pondered the prospect of retirement and the promise of yelling at children who dare step on their lawns.

I remember arguing a custody case for a transgender client who didn’t want to face an impossible choice: lose your children or lose your authentic self. I had to explain the difference between a transsexual and transgender to literally every individual working on the case (the Court Officers, the Court reporter, the Judge, the attorney appointed to the children) and I didn’t have Caitlyn Jenner to help explain.

We were into LGBT law back when it wasn’t even a thing to be into. Now there are whole firms that focus, and advertise primarily to that market. Oh, the times… they are a’ changin’. I remember speaking at the “Lavender Law” conference at Fordham Law School back in 2005 on a panel regarding mediation and alternate dispute resolution for same-sex couples. I warned those in attendance of what a “roll of the dice” taking a same-sex case to court was in the then- current cultural climate. I ended my presentation on a hopeful note. I told the attendees that same-sex marriage was coming. In our lifetime. It was inevitable.

There have been many recent victories for same-sex marriage, with the institution now recognized as legal in 36 states (although there is plenty of variation on how it works, and some states have flip-flopped on the legality over the years).

Seventy percent of Americans now live in a place where they can legally be married to someone of the same sex, a fantastic step towards equality. Here in New York, same-sex marriage is legal, which means same-sex partnerships should enjoy all the rights and privileges heterosexual couples do, including the right to divorce if need be.

Same-sex divorce is certainly less talked about in the media, because who wants to be the Debbie Downer at the party? Hooray, what a great day for America! By the way, after all that joy and celebrating and the vows and the big party and gifts and everything, don’t forget, divorce is also now part of your equality, if and when things go south! Less celebratory, sure, but it certainly
doesn’t make sense for same-sex couples to be trapped
in unhappy marriages.

Divorce as an Equal Rights Issue
Marriage and divorce laws vary state by state of course, but basically they’re pretty similar for hetero couples. This means if you get married in New Hampshire, move to Washington state, and settle down in Arizona and want to get divorced there, your rights as a married couple were essentially identical throughout that whole journey, as one would hope.

But same-sex partnerships face uncertainty because same-sex marriage is still legally very new. Because it is recognized differently in different states, how to get divorced where you currently live —or in a state where it was legal but now isn’t—can be a problem. How can people divorce if they’re not recognized as married? If you can’t easily obtain a divorce, how do you move on with your life? Particularly if it’s not an amicable split, how do you enforce the equitable division of assets and deal with custody arrangements?

Going even further, how can the length of a relationship be defined in places where same-sex couples were waiting for marriage to be legalized in their state? On principle it seems that time should be counted when determining equitable division of assets based on the time spent in a marital relationship—even if it wasn’t legal marriage.

Divorcing for Nontraditional or Same-Sex Couples
As states are still get their footing and new laws are enacted, in all likelihood you’re going to have more red tape and hurdles than heterosexual couples have. Thankfully, rockstars like Susan Sommer are making huge inroads. She championed legalizing divorces of same-sex couples who had been married in other states where same-sex marriage wasn’t previously legal. Until there are dozens of Susan Sommers around the country paving the way for streamlined same-sex divorce laws, it’s important you be prepared for what might be more complicated proceedings compared to your heterosexual divorcing counterparts.

The climate is changing – as highlighted in this year’s NYC Pride theme: Complete the Dream – and in fact just last week the Texas Supreme Court upheld a same-sex divorce despite the fact that the state does not (yet!) recognize same-sex marriage. A day will come when it sounds strange for a lawyer to make a distinction between “gay divorce” and “heterosexual divorce.” Our children’s children won’t remember a time when two men or two women in a marriage was relevant to anything other than what pronouns you used in your arguments.

Until then it’s a good move to trust your case to a firm like mine, that has handled a large number of same-sex dissolutions and divorces. A firm that was “into” LGBT legal issues before it was cool.

Happy Pride Week!



James J. Sexton