New York same-sex couples have many issues to consider when separating – especially if their relationship started before marriage equality laws were enacted. Same-sex couples face many challenges in ending relationships and determining the division of property and child custody.
There are over 1,000 benefits associated with being married that are not available to unmarried couples, including inheriting property, automatic recognition of parentage of children, and medical visitation rights.
Although New York State enacted marriage equality in 2011 and the federal government did so in 2015 with the Obergefell v. Hodges Supreme Court decision, many same-sex couples lived together, raised children and shared assets long before then. This can complicate divorce proceedings for same-sex couples. New York law counts the date of civil marriage as the start of a marriage, and not a religious marriage or the start of cohabitation. However, there are exceptions.
Two women married in a Jewish religious ceremony in 2005, and in a civil marriage in 2011. When they divorced in 2019, one spouse argued that the marriage started in 2005 rather than 2011. The New York Supreme Court Appellate Division, Second Department, ruled that the marriage began in 2005. Courts have ruled that even in the absence of a civil marriage license, a religious marriage will be treated as a domestic marriage for economic purposes in New York.
Same-sex couples with children often ran into complications during divorce proceedings. Courts were left to determine if family relationships, parental intent, or biological parentage should determine custody, child support, and visitation agreements.
The NY Court of Appeals ruled in 1991 that a non-biological mother was not a mother, even though she had an established relationship with the child. Judge Judith Kaye dissented, writing “the impact of today’s decision falls hardest on the children of those relationships, limiting their opportunity to maintain bonds that may be crucial to their development.” The NY Court of Appeals in 2016 overruled this decision, citing Kaye’s dissent that maintaining family bonds is important for children.
The NY Child Parent Security Act in 2021:
- Established legal rights for parents who use assistive reproductive technology, like gestational surrogacy; and
- Codified that intent, rather than biology, can determine who is the legal parent of a child. It sets a framework with clear indications of intent, and the consent of everyone involved prior to birth to determine parentage – regardless of the gender of the parties involved.
For couples who are unmarried but want to protect their rights, it is important to make sure that there is a paperwork trail establishing that a partner is the designated beneficiary of property and finances and rights to power of attorney and healthcare proxies/living wills, Estate planning is essential for unmarried couples who need to provide for each other in the event of death.
Call or text experienced NY divorce attorney, Mike Ranzenhofer at (716) 543-3764 to protect your rights in a divorce.