July 2, 2011

Gay Marriage & Divorce in NY

Posted in Divorce tagged , at 4:00 pm by demetriagraves

The New York Senate has now approved same-sex marriage – joining New Hampshire, Vermont, Massachusetts, Connecticut, Iowa and the District of Columbia – two years after a similar bill had been defeated. New York is the largest state to allow couples of the same sex to marry. State senators voted 33-29 to approve marriage equality legislation introduced by Governor Andrew Cuomo, a Democrat in his first year of office. Twenty-nine states have constitutional bans on same-sex marriage, and 12 others have laws barring such marriage.

As New York’s same-sex couples head to the altar to celebrate their newly won right to marry, they can take comfort in the fact that, if it doesn’t work out, their right to get divorced in the state just got a lot easier as well. With New York state being the last state to introduce ‘no fault’ divorce last year. Officials predict that about 21,000 gay and lesbian couples will marry in New York in the next three years. Based on the state’s current divorce rate, about 1,800 of those marriages will fail. Courts in the state already allow gay divorces there because the state recognizes gay marriages performed elsewhere.

In fact, same-sex divorce was first recognized in New York in 2008, when an appeals court found that a same-sex marriage performed in Canada could be legally recognized in New York for the purposes of dissolving the union. But without a formal law on the books, same-sex divorce in the state has proceeded on a case-by-case basis, creating some degree of uncertainty for same-sex couples looking to undo their unions. Since same-sex marriages are now legally equivalent to heterosexual unions, same-sex couples’ right to divorce will be rooted in New York’s Domestic Relations Law, rather than cobbled together out of court rulings and individual judges’ decisions. If same-sex couples married in New York leave the state, however, they may run into trouble getting a divorce, especially if they end up in one of the 30 states that do not recognize same-sex marriage.

Interestingly enough, same-sex relationships are no more susceptible to divorce than their heterosexual counterparts. According to a 2008 report from the Williams Institute at the University of California Los Angeles, annual same-sex marriage divorce rates were about 2 percent, nearly identical to the rate for opposite-sex marriage.

One issue that remains unresolved by the same-sex marriage vote is child custody, where one partner is a biological parent but the other has failed to adopt the child.

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