Same Sex Divorce- Available in New York, Questionable Elsewhere

Posted by Daniel Clement on May 03, 2010

While more states are allowing same sex marriage, obtaining a same sex divorce may be problematic. Though the District of Columbia and five states have legalized same-sex marriage, CNN is reporting that some states, which do not recognize same sex marriage explicitly ban same divorce or will not even recognize the validity of the marriage.

Though New York will not allow same sex marriage, it will recognize, as valid, marriages performed in a state which allows same sex marriage. In those cases where New York recognizes the validity of same sex marriage, New York courts will permit same sex divorce. In fact, I have been fortunate enough to have represented successful same sex litigants seeking a divorce.

While all heterosexual marriages and divorces are recognized when a couple moves from one state to another, some states do not follow New York’s example, and will not recognize as valid, same sex marriages even if the marriage was lawfully entered into another jurisdiction.

In the states not performing sex marriage, the issue of same sex divorce creates a conflict- if the state doesn't recognize a marriage, then how could it dissolve it? If a state that outlaws gay marriage but grants a same-sex divorce, does that imply gay marriage is recognized? On the other hand, the denial of the same sex divorce locks the parties in a same sex marriage which the state opposes.
 

New York Courts Have Jurisdiction To Dissolve Civil Unions

Posted by Daniel Clement on March 22, 2010

A New York court has jurisdiction to hear an action to dissolve a civil union validly entered into outside of this state and to equitably distribute the property acquired during the civil union.

New York courts have recognized and been increasingly accepting of the rights of same sex couples. New York will, for instance recognize, as valid, an out-of-state same-sex marriage even though the marriage could not have been solemnized in New York.

In Dickerson v. Thompson, the parties traveled to Vermont and entered into a civil union. Both parties were residents of New York throughout their relationship; neither party ever resided in Vermont. After the parties' relationship began to deteriorate, the plaintiff sought to dissolve the civil union in New York. (The civil union could not be dissolved in Vermont because neither party was a resident for a year prior to the commencement of the action.)

The Appellate Division, Third Department, noted that although the New York court has jurisdiction to entertain the action to dissolve the civil union, it left open the issue “to what extent relief may ultimately be afforded to the parties.”
 

Wave of Same-Sex Divorce to Follow Flood of Marriages?

Posted by Daniel Clement on June 17, 2008
Following up on yesterday’s posting is this article, in today’s New York Post, (in which I was quoted).

The floodgates have opened; there will be thousands of same-sex marriages performed in California in the near future. In the aftermath, I anticipate a wave of same sex divorces.

At least, one court has already recognized the right of same sex couples to seek a divorce in New York.

 In order to avoid the pain of divorce, same-sex marriage couples should be urged to proceed with caution. As pointed out in the Post:

Fools rush in, they said, even gay fools.

"It's not a decision to rush into," said Jim Key, a spokesman for the LA Lesbian and Gay Center.

Same Sex Marriage Stimulates Economy

Posted by Daniel Clement on June 16, 2008

In an environment where every day we are greeted with news about the troubled economy, we are thankful for any sign of economic growth.

Today, California began performing same sex marriages which may provide a boost to the local California economy.

The New York Times reported that:

The potential windfall of same-sex marriage was underscored this week in a study by the Williams Institute at the University of California, Los Angeles, School of Law, which estimated that over three years, same-sex nuptials would contribute $684 million to the state’s wedding industry and $64 million to the state budget.

The Times describes the cottage industry of performing the once forbidden same sex marriages:

It’s basically a godsend,” said Daniel Doiron, the general manager of the Ingleside Inn in Palm Springs, which is offering honeymoon specials from $479 bargain basement (boutonnieres, 15-minute wedding, 20 guests) to the “Elizabeth Taylor” at $29,999 (poolside villas, wedding cake and reception, ice sculptures, flowers, sit-down dinner for 200 and three nights in the honeymoon suite).

Not to jinx any of the nuptials, but, like heterosexual marriages, some of the same sex marriages will not be everlasting and will end in divorce. These same sex divorces will further drive the economy, as the parties will need to employ the services of lawyers, accountants, financial planners, mental health professionals, appraisers and other divorce professionals.

Domestic Partnerships and the Continuation of Maintenance

Posted by Daniel Clement on August 01, 2007
Postings in two divorce and family law blogs highlight a growing conflict between the states on how to deal with a parties continuing obligation to pay alimony or maintenance, as it called in New York, if the former spouse enters into a domestic partnership.

To frame the issue, what happens if you are obligated to pay maintenance to your ex, but your ex rather than  re-marrying, enters into a domestic partnership? A number of states have enacted civil union or domestic partnership statutes which grant same sex couples some, but not all, of the rights and privileges of marriage. Maintenance or alimony typically terminates when the receiving spouse remarries.

The New Jersey Law Blog provides an excellent survey of the issue, contrasting a case from Virginia, which held as a result of the domestic partnership alimony should terminate, and one from Oregon, which held that the support obligation should continue.

The Florida Divorce Blog reports on a California decision in which the court ruled that a domestic partnership “is mere cohabitation and not a marriage.” Therefore, the alimony payments were ordered to continue.

To avoid uncertainty and litigation, this issue must be addressed in a settlement agreement at the time of divorce. If it is the parties’ intention that maintenance should terminate in the event of a cohabitation (same sex or opposite sex), the entry into marriage or a domestic partnership or civil union, the settlement agreement should make special provision. The failure to address t his issue exposes the parties to an unknown and presently unpredictable future determination.