Though same-sex marriage has been legally recognized in New York for years now, the reality is that LGBTQ family law issues can still become extraordinarily complex, especially when children, substantial assets, spousal maintenance, or contested custody matters are involved. If you are currently dealing with any LGBTQ family law issue, please don’t hesitate to contact a seasoned Staten Island divorce and family lawyer from Dow Divorce Law today. We are here to protect your rights and advocate for your interests, every step of the way.
Filing for Divorce in a Same-Sex Marriage
Though the process of filing for divorce in a same-sex marriage is, generally speaking, similar to the process involved in any other divorce in New York, there are still several unique issues that frequently arise. First, before filing for divorce, you and/or your spouse will have to satisfy New York’s residency requirements. In many cases, this means:
- Proving that at least one spouse has continuously lived in New York for at least two years prior to filing.
- OR you may only need to establish one year of residency, particularly if you were married in New York or previously lived in New York together as spouses.
New York is also considered a no-fault divorce state. Essentially, this means that you generally do not have to prove wrongdoing by your spouse to obtain a divorce. Instead, you may simply cite that the marriage has experienced an irretrievable breakdown for at least six months.
If you are a husband going through a same-sex divorce, there is a very good chance you are worried about several financial and parental issues simultaneously. This is understandable. For example, many men entering divorce proceedings are concerned about:
- Losing meaningful time with their children
- Paying excessive spousal maintenance
- Protecting retirement accounts and pensions
- Preserving ownership interests in businesses
- Ensuring marital assets are distributed fairly
- Protecting inherited or premarital property
- Preventing false allegations from influencing custody proceedings
As with any divorce, equitable distribution will frequently become one of the primary issues in the case. However, you should note that “equitable” does not mean “equal.” Instead, it means what the court determines is fair after considering numerous factors.
Unique Issues in LGBTQ Divorce Cases
Though many LGBTQ divorce cases involve standard family law issues, such as custody disputes, child support, or property division, there are also several issues that tend to arise more frequently in same-sex divorces than in traditional divorces.
One of the most significant issues frequently concerns parental rights. In many families, only one father may be the biological parent of a child. In others, one parent may have formally adopted the child while the other did not. Unfortunately, when relationships deteriorate, these distinctions can become highly contentious very quickly.
Naturally, one of the biggest fears many fathers have is losing access to the child they helped raise simply because they are not biologically related to the child. Fortunately, courts have increasingly recognized the importance of established parental relationships.
When determining custody matters, New York courts are primarily concerned with the best interests of the child. Generally speaking, courts will evaluate several factors, including the following:
- The relationship each father has with the child
- Which parent historically handled caregiving responsibilities
- The quality and stability of each parent’s home
- Each parent’s ability to support the child emotionally and financially
- Whether either parent is attempting to interfere with the child’s relationship with the other parent
- Any history of substance abuse or domestic violence
Another issue that can arise in LGBTQ family law cases concerns surrogacy arrangements and assisted reproduction. Though New York law has expanded protections regarding surrogacy agreements in recent years, disputes can still occur regarding financial responsibilities and parental rights if the relationship eventually breaks down.
Common Challenges Faced by Men in LGBTQ Family Law Cases
There is no question that men involved in LGBTQ family law disputes frequently feel they have a tremendous amount at stake. In many cases, they are not only concerned about their finances, but also about preserving their role as an active father moving forward.
Unfortunately, some fathers still feel as though courts place disproportionate emphasis on traditional caregiving roles, particularly where one parent historically spent more time at home with the child. Whether that perception is accurate or not, the concern itself is very real for many men entering custody litigation.
Additionally, men who were the primary earners during the marriage frequently worry about long-term financial obligations following divorce. Spousal maintenance, child support, property division, and attorney’s fees can all become significant issues very quickly, especially in highly contested cases. Some of the most common issues men face in LGBTQ family law disputes include:
- Custody disputes involving non-biological fathers
- Relocation disputes
- Financial concealment by the other spouse
- Disagreements involving school choice or medical treatment
- Attempts to reduce parenting time
- False allegations designed to gain leverage during litigation
- Complex business valuation disputes
- Disputes involving jointly-owned real estate
Frequently Asked Questions About LGBTQ Family Law in New York
Can both fathers receive custody rights in New York?
Yes. In many cases, New York courts may recognize both fathers as legal parents, though the specific facts surrounding biological parentage, adoption, and the child’s upbringing will frequently play a major role in the outcome.
Can a non-biological father seek custody or visitation?
In many cases, yes. New York courts increasingly recognize the importance of parent-child relationships, even where one father is not biologically related to the child. However, these cases can become legally complex rather quickly.
Does New York favor one parent over the other in custody cases?
Generally speaking, courts are supposed to focus on the best interests of the child, rather than favoring one parent based on gender. Fathers have every right to pursue custody and substantial parenting time.
How is property divided during a same-sex divorce?
New York follows equitable distribution rules. This means that courts will divide assets based on what they believe is fair and just, which is not necessarily “equal,” or “50/50.” This is why you need an attorney in your corner who can effectively protect your assets.
Can I receive or pay spousal maintenance in an LGBTQ divorce?
Yes. Same-sex spouses are subject to the same spousal maintenance laws as any other married couple in New York State.
What if we lived together long before same-sex marriage became legal?
This can sometimes complicate property distribution issues, particularly if assets were acquired before the legal marriage occurred but during the relationship itself.
Contact an LGBTQ Family Lawyer in Staten Island, New York Today
If you’re facing a same-sex divorce or any other family law issue, you can depend on an LGBTQ family lawyer from Dow Divorce Law to effectively advocate for your rights and interests, every step of the way. Contact our legal team today so we can get a better understanding of your situation, and, from there, work to create a comprehensive strategy on your behalf.
