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Thursday, June 30, 2011

NY Passes Same-Sex Marriage Bill – What Does it Mean for Divorce?

Last week, the State of New York passed legislation making same-sex marriages legal. New York joins Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia as the only states that have made same-sex marriage legal. However, New York is by far the most high profile state on this list, and it is estimated that they have more same-sex couples than the other five states combined. This was a major victory for proponents of same-sex marriage, and it might transform the debate on the national level. The law will go into effect in 30 days, and same-sex couples should be able to get married by late July.

While most same-sex couples are celebrating their new ability to legally enjoy the same benefits that married heterosexual couples do, it is still worth discussing how this law will impact those marriages which are unable to stand the test of time. In other words, how will New York’s same-sex marriage laws affect same-sex divorce?

In general, it appears that the current New York State divorce laws should not need to be altered to accommodate same-sex divorces. The laws should apply equally to same-sex marriages as to heterosexual marriages, and since most of the laws are already worded in gender-neutral language, they should not need to be altered at all.

Currently, divorce laws do not refer to “husband and wife,” but instead refer to “spouses.” In addition, spousal support statutes refer to the “monied” and “non-monied spouse,” while child custody laws talk of the “custodial” and “non-custodial” parent. All decisions related to child custody issues will still be made based on what is in the best interest of the child. Similarly, equitable distribution or marital property laws will still apply in the same ways that they do for heterosexual couples.

It will still be important to work with an experienced divorce attorney who can make sure that your interests and the best interests of your children are protected during this difficult time. However, it seems that same-sex divorces should not be any more complicated than heterosexual divorces. Of course, in such an acrimonious situation, there is no guarantee that the process will go smoothly.

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