In New York, same-sex couples have the same right to get married as heterosexual couples. Likewise, they have the same right to get divorced.
Same-sex divorce has been legal under New York divorce laws for many years. New York was among the 36 states that had made same-sex marriage legal before it became legal nationwide in 2015.
New York legalized gay marriage in its Marriage Equality Act in 2011. The fact that same-sex marriage is legal in New York means that same-sex spouses may take advantage of all the state’s benefits, including tax benefits, insurance from a state-licensed agency, health care, and more. They may also get divorced.
New York is a no-fault divorce state. The Supreme Court of New York is the only court in the state that handles divorce cases.
Supreme court judges are the only people who can legally grant divorces. People wishing to file for a divorce in New York should go to the Supreme Court in the county in which the person who files first for divorce resides.
What Are the Legally Recognized Grounds for Divorce in New York?
Before same-sex couples can divorce in New York, they must meet the residency requirement Divorce in New York is both no-fault and based on legally recognized grounds. New York started allowing no-fault divorce in 2010. Meanwhile, a person can still allege that they have grounds for divorce as follows:
- Infidelity
- Domestic violence
- Cruel treatment
- Emotional or verbal abuse
- Long-term abandonment
- Long-term incarceration
- Divorce after a legal separation
- Imprisonment of one or both spouses.
In New York, a person does not have to show that their spouse is at fault in some way, e.g., infidelity or abandonment, to get a divorce. A person may get a divorce by simply filing a petition stating that the person and their spouse can no longer live together.
What Are the Residency Requirements for Same-Sex Divorce in New York?
All same-sex couples must meet the New York state residency requirement to be eligible to file for a same-sex divorce in New York. The ways in which the residency requirement can be met are as follows:
- A person and their spouse entered into a same-sex marriage in New York, and at least one of them has lived in New York for 1 year or longer.
- A person and their spouse entered into a same-sex marriage in another state, but at least one of them has lived in New York for 1 year or longer.
- At least one of the spouses has lived in New York for 2 years.
How Do I File for a Same-Sex Divorce in New York?
If a person has one of the grounds for divorce noted above, they may file for a same-sex divorce. There are two types of divorce: contested divorce and uncontested divorce. A couple may file for a same-sex uncontested divorce when there are no marital property division, child support, or child custody issues for the court to decide. In addition, in an uncontested divorce, neither spouse contests the fact that the other is entitled to a divorce.
There may not be any issues in dispute because there is no marital property or debt or the couple has no children; this may be because the couple entered into a marital property agreement or child custody and support agreement.
A couple may file for a same-sex contested divorce when one spouse alleges the other is at fault or if there are unresolved problems related to the children or marital property.
What Paperwork Do I Need to File for Divorce?
To initiate a divorce, even an uncontested divorce, a person would begin by filing a Summons with Notice (Form UD-1) and a Verified Complaint (Form UD-2).
The Verified Complaint is the form that starts the divorce process and names the spouses as “plaintiff” and “defendant.” These forms require the person filing them to provide a substantial amount of information.
After filling out the forms, the person starting their divorce must take two additional copies to the clerk’s office and file those. The person must pay a fee to file their divorce petition. They are then required to serve the summons and complaint on the other spouse. This must be done within 120 days of the filing date.
What Forms Do I Need to File for Same-Sex Divorce in New York?
It is possible for a person to file for their same-sex divorce in New York online. Or, they may initiate it in the traditional manner by filing paperwork with the clerk of the court, as noted above.
Some people who are skilled in managing online procedures may be able to complete their divorce online without hiring a lawyer. It is usually a less expensive and faster way to proceed than a traditional divorce using paper forms. If a person files for a same-sex divorce in New York, they will need to meet residency requirements, as noted above.
Once the spouses have agreed on the main points of their divorce, they may use online services to get the paperwork ready at a good price. However, complications may arise that might make a person want to take advantage of the help of an experienced New York divorce lawyer.
As noted above, a person may also begin a same-sex divorce in New York by submitting paperwork to the court in the county in which they live. Different counties have different rules, so it is important to do some research about local court rules before a person goes to court. A person can get divorce forms online or from a local New York attorney, although that would come at an expense, especially if the spouses have a case that is complicated.
Some lawyers specifically handle same-sex divorce and might be especially helpful.
If a person prepares everything themselves, they want to make sure to read up on the filing process. The paperwork depends on the specifics of the case, such as whether there are minor children, significant property, and/or custody and child support issues.
What Are the Tax Implications of Same-Sex Divorce?
The federal Internal Revenue Service (IRS) has stated that it recognizes same-sex marriages for federal tax purposes. Now that same-sex marriage is legal nationwide, states must also recognize same-sex marriage for state tax purposes and treat same-sex couples the same as heterosexual couples.
There may be a variety of tax consequences in a divorce. The consequences are the same for same-sex couples as for heterosexual couples. Of course, after a divorce, both spouses would file as single people unless they marry again immediately following the divorce. There are tax considerations to the payment of spousal support and child support if one spouse makes these payments to the other.
If real property has to be sold as part of a divorce, there may be tax consequences to these transactions.
Of course, a person has to support themselves and their lifestyle with their own resources unless they receive spousal and/or child support. So, this may make a person’s financial situation quite different after divorce than it was before the divorce.
Do I Need a Lawyer for a Same-Sex Divorce in New York?
While same-sex divorce is identical under New York law to heterosexual divorce, this does not mean it is an uncomplicated process. Divorce, in general, may become complicated, and the process can be prolonged and emotionally exhausting.
If you are interested in filing for a same-sex divorce in New York, you need to discuss your case with a New York family lawyer. A same-sex divorce lawyer can advise you on New York divorce law, evaluate your options, and help you protect your interests in your property and children.
