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While same-sex couples have the freedom to marry in every state of the Union, the logistics of obtaining a divorce are still something of a mystery. That can leave a couple in New York wondering if the divorce laws that applied to opposite sex couples for years also apply to them. Choosing to seek advice from a same-sex divorce lawyer will make it easier to determine what needs to be done and how to go about legally dissolving the marriage. Here are some of the ways that the legal counsel will help the client.
Understanding How Current Laws Apply
In the state of New York, the laws governing divorce are the same for all couples regardless of the genders of the two parties. That includes laws related to residency, what has led to a breakdown of the union, and the desire of one or both parties to end the marriage. Just hearing that there are no special laws that a same-sex couple has to deal with alleviates a lot of stress.
What is Meant as a Residency Requirement?
One of the major requirements for ending a marriage has to do with residency. Under current New York law, one of the spouses must be a resident of the state for a period of one year. If the couple was married in New York and have continued to reside in the state, this will not be an issue. That will mean that both the marriage and the subsequent chain of events that led to a breakdown of the relationship took place within the state.
Couples who were traveled to New York in order to marry before same-sex marriages became the law of the land and returned to their home states may find it easier to move to the state and establish residency in order to avoid whatever complications remain in their home states. At least one spouse will need to establish residency. Depending on the circumstances, a lawyer may recommend entering into a legal separation for several months before filing for the divorce.
Understanding the Grounds for Divorce
Settling on an uncontested versus a contested divorce is another consideration. With an uncontested divorce, both spouses are in agreement that the marriage must end. This simplifies things greatly, since the couple can point out how the marriage has been what is considered an irretrievably broken state for a minimum of six months and indicate their mutual desire to terminate the legal relationship.
With a contested divorce, one party is not in favor of ending the relationship. That will make it necessary to establish grounds for seeking this type of action. Abandonment, one spouse being sent to prison, adultery, and spousal abuse are some examples of grounds that the court will readily recognize.
Division of Property Under the Terms of a Prenuptial Agreement
Many couples today choose to create a prenuptial agreement prior to marrying. If such an agreement is in place, the legal teams for both spouses will incorporate the provisions of that document into the division of property. Keep in mind those provisions must be in compliance with New York laws in order to be binding. If the document was prepared in New York, the couple can rest assured that all terms and conditions apply.
What if There is No Prenuptial Agreement?
Is the couple chose to marry without a prenuptial agreement, the legal counsel for each party will assist in coming up with an equitable distribution of property. Some people think that New York’s status as an equitable distribution state means that each spouse will receive half of the couple’s assets. That’s not necessarily the case. What it does mean is that any division of the property must be approved by the court as being fair and equitable based on factors related to the termination of the marriage.
How About Custody of the Children?
When the same-sex couple has minor children, there is the need to work out a number of issues related to the children. Assuming one of the spouses is the biological parent of the child, there is a good chance that the court will look to that parent to serve as the custodial parent. This is especially true if the other spouse never legally adopted the child.
When adoption did occur, the court will only approve a custody arrangement that is determined to be in the best interests of the child. That includes determining which parent is in the best position to provide a stable home life and see to the day to day needs of the child. The other parent, assuming there are no mitigating circumstances, will serve as the non-custodial parent and be awarded visitation rights. The non-custodial parent will also contribute to the financial support of the child, based on the resources that each parent has available to care for the child properly.
If the marriage has broken down and reconciliation is not an option, seeking counsel from a same-sex divorce lawyer is the only practical solution. In the best case scenario, ending the marriage will be uncomplicated and the former spouses can get on with their lives.