The very week that the New Jersey Supreme Court forced the state legislature to address the issue of same sex marriage, a New York court rendered a decision which highlights the differences in the law when same sex and heterosexual couples split-up. 

Indeed, “divorcing” same-sex couples are not entitled to equitable distribution. Instead, those couples terminating a relationship that was not recognized as a legal marriage (which also includes heterosexual, but unwed couples), need to explore alternate theories for dividing their jointly acquired assets.

The case of Cytron v. Malinowitz, involved the break-up of a thirteen year domestic partnership. During this long term relationship, the parties acquired a home and accrued valuable retirement accounts, to which both parties were making claims of entitlement.     Unquestionably, had the parties been a legally wedded couple, all of the property acquired during the marriage would have been subject to equitable distribution. 

Since the domestic partners are not married, the Court, by necessity could not equitably distribute the assets acquired during the relationship.    Instead, the Court applied partnership law to distribute the proceeds of the home the domestic partners owned as joint tenants. Each of the litigants was entitled to the return of their respective contribution to the home purchase. The remaining equity was split equally between the parties.

Citing the recent Court of Appeals case of Hernandez v. Robles, which denied same sex couples the rights of heterosexual married couples, the court declined to “distribute” the portions of the retirement account accumulated during the relationship. 

Since the retirement account could not be subject to equitable distribution, one party sought to impose a constructive trust on the asset. In short, a constructive trust is a devise imposed by a court “whenever necessary to satisfy the demand of justice. . . A constructive trust may be imposed in favor of one who transfers property in reliance of a promise originating in a confidential relationship, where the transfer results in the unjust enrichment of the other.” 

In Cytron, though the trial court found there was a relationship of trust between the parties, it failed to find that there was any representation to share in the pension assets.   Therefore, in the absence of an agreement, the pension assets were not distributable. Had this been a legally married couple, the pension assets would, as a matter of law, be a marital asset and would be subject to the claims of the non-titled spouse. 

As a footnote to the issue of same sex marriage, any expansion of the right to wed would, by necessity, have a corresponding effect on divorce and distribution of “marital property.”