Same-sex marriages were legalized in New York on June 24, 2011. Four years later, in 2015, a ruling by the Supreme Court made such unions legal throughout the U.S. As a consequence, all courts became bound to recognize same-sex divorce in New York.
Any couple seeking a gay divorce has to comply with several requirements, which are the same for all residents of the state of New York, regardless of their sexual orientation. Anyone married to a same-sex partner can get a divorce in New York on equal conditions with heterosexual couples.
For example, neither heterosexual nor same-sex partners can legally enter a common-law marriage in New York. However, this type of union can be recognized if it occurred in another state and was valid there.
Statutes for the regulation of the divorce proceedings can be found in the Consolidated Laws of New York, specifically in the chapter called Domestic Relations (DOM).
Same-sex divorce online
Divorce over the Internet has become a quick and easy alternative for couples who want to dissolve their marriage amicably and without a lawyer. Do-it-yourself divorce is usually inexpensive and time-saving compared to the traditional form of marriage dissolution. To file for same-sex divorce in New York, one of the spouses must meet the residency requirements.
When the spouses can agree on critical points of the separation, which is a basis for an uncontested divorce, they may use the help of web services to prepare the necessary papers at an affordable price. For example, onlinedivorcenewyork.com provides clients with printable documents for the reasonably low price of just $139.
Same-sex divorce papers in New York
The divorce process for same-sex partners in New York starts when one of the spouses files divorce documents with the court in the county of his or her residence. Each county can have its own specific local rules on how to file same-sex divorce in New York, so it is important to do thorough research before the court hearing.
Same-sex divorce forms in New York can be obtained either online with the help of services specializing in this field or from a lawyer. The cost of the latter can be very substantial, especially for complicated cases.
If you decide to prepare the same-sex divorce papers by yourself, make sure to study all the relevant information concerning filing procedures in New York.
Same-sex divorce paperwork in New York State varies depending on the circumstances of the case, such as the involvement of minor children, property issues, and custody disputes.
Valid grounds for same-sex divorce in New York
In order to file for divorce in New York and dissolve a same-sex marriage, one or both of the spouses must be a resident of the state, living there for at least one year before the action.
Besides meeting the residency requirements, the couple must provide the court with one of the following grounds (DOM, Section 170):
The cruel treatment of one spouse by another, which endangers health and well-being.
Abandonment for more than one year.
Confinement to prison for more than three years after marriage.
The spouses have lived apart for one year and more after the granting of a separation decree or execution of a written agreement of separation.
Irretrievable breakdown of the marriage for more than six months.
Since New York is a no-fault state, the spouses can choose the irretrievable breakdown as the main reason for separation without providing any fault-based grounds.
Before filing for divorce on the grounds of irretrievable breakdown, spouses have to reach an agreement on property division, alimony, child support, and parenting time. A marriage dissolution decree cannot be obtained until these issues are resolved. New York law also requires that one of the spouses states under oath the fact that the marriage has broken down.
Custody of the Child
Family law regulates parent-children relationships and defines the rights and obligations of parents after the dissolution of marriage. Spouses with children can get a same-sex divorce in New York after such issues as child custody and support are resolved.
Generally, a judge will determine the type of custody and a custodial-parent based on the child’s best interest. The court usually awards joint legal custody (giving both parents decision-making power to solve issues related to the health and education of the child together) and sole physical custody (a child lives with one parent, while the other has visitation rights).
If either parent is associated with child physical or sexual abuse, they will not be awarded custody rights (DOM, Section 240-1). In order to minimize the harmful effects of marriage dissolution on minor children, spouses may be ordered to attend a parenting class. Certified instructors will provide parents with the best ways to manage their children to help them cope with stress.
When minor children are involved in the marriage dissolution process, one or both parents will be ordered to pay a sum of money to provide for the care and needs of the child.
The factors that the court takes into account to make a child support determination are as follows:
- the financial resources of parents
- the physical and mental health of the child and his or her needs
- the standard of living during the marriage
- educational needs of parents and children
- other factors.
According to Section 413 of Family Court Act (FCT), the amount of child support is calculated according to the combined gross income and depends on the number of children: one child — 17%; two — 25%; three — 29%; four — 31%; five or more — no less than 35%.
Gross income includes wages and salaries, disability and unemployment benefits, pensions, stipends, and other sources.
A judge may order one of the spouses to provide financial support (maintenance) to the other, taking into consideration the length of the marriage, the ability of each party for self-support, and the circumstances of the case.
The amount of maintenance is calculated before the child support, to which it will be included. When a judge decides on the amount of spousal support, he or she considers the following factors:
- the income and property of both spouses;
- age and health of the parties;
- educational needs to obtain employment;
- the termination of child support;
- dissipation of marital property;
- acts of domestic violence;
- earning capacity of the parties;
- standard of living during the marriage;
- the need to care for disabled children;
- other factors (DOM, Section 236 — Subsection 6).
Should any substantial changes occur in the financial standing of the paying spouse, he or she can apply for the modification of the maintenance. In complicated cases, it is better to consult with an attorney.
How is property divided for same-sex couples? Divorce laws in New York regarding property division are the same for same-sex unions and heterosexual marriages. A judge will divide assets and financial liabilities between the spouses according to a principle called “equitable distribution.” It includes consideration of the following criteria:
- the income and property of spouses during the marriage;
- the length of marriage;
- age and health of spouses;
- the loss of health insurance, pension benefits, and inheritance upon marriage dissolution;
- dissipation of marital funds;
- future financial states of spouses;
- any contribution to marital property from the parties;
- other relevant factors.
Only marital property is subject to division. Separate property, such as property that was acquired before the marriage, will be returned to its original owner (DOM, Section 236).
New York State courts provide mediation programs to spouses at the early stages of their marriage dissolution. Mediation is an alternative way to solve disputes between the parties and avoid a divorce trial. Often, the program is free of charge or made available at reduced costs.
As the couple moves through the process of mediation, they discuss such issues as custody of children, alimony, and child support and reach an amicable agreement. The final settlement is submitted to the court. The judge then reviews it and decides whether to accept it. Mediation usually saves time and money and is strictly confidential.
Filing fees for same-sex divorce in New York
A couple can file for same-sex divorce in New York by submitting a number of documents with the court. They include Summons with Notice (Form UD-1) or Summons (Form UD-1a) and Verified Complaint (Form UD-2). Each case is assigned an index number, which costs $210. Later in the case, you will have to complete and submit the Request for judicial intervention ($95-$125). Additional payments may include servicing fees, copying of papers, and other court motions.
If the plaintiff does not have sufficient financial resources to pay the fees, he or she can ask for a waiver. In order to receive an exemption due to financial hardship, a filing spouse must complete an affidavit and attach proof of income such as a W-2 and other required financial information.
How long will it take
The process of divorce for same-sex couples in New York can take from a few months to several years. If there is no contest between spouses, the marriage is short, and there are no minor children of the marriage, the decree for marriage dissolution can be obtained in two-three months. But for couples with children or property issues, the length of divorce process may be longer.
There is no formal waiting period for the case to be finalized. However, some factors may influence even uncontested cases. For example, if you are married to a same-sex spouse, the time needed to get a divorce in New York if the spouse is out of state will depend on how fast the serving of documents is completed and how quickly the other spouse responds.
The decision on how to serve the documents is up to the plaintiff. The only condition is that the person who serves the papers is at least 18 years old and is not a party to the case.