In 2011, the New York legislature passed the Marriage Equality Act, which afforded same-sex couples the right to marry in New York. Then, in 2015, in Obergefell v. Hodges, 576 U.S. 644 (2015), the United States Supreme Court held that same sex couples have a constitutional right to marry, as marriage is a recognized “fundamental right” the denial of which is a violation of the Fourteenth Amendment’s guarantees of Due Process and Equal Protection under the law.
Having secured the right to marry at both the state and federal level, same sex couples now enjoy the privileges of marriage, as well as its protections, obligations, and pitfalls. Notably, the marriage equality act amended the Domestic Relations law to be gender neutral wherever statutory language was previously gender specific. Accordingly, all provisions applicable to heterosexual married couples are now equally applicable to same-sex married couples, including all sections applicable to divorce, equitable distribution, maintenance, child support, and counsel fees and expert fees.
Same-sex married couples, however, encounter unique challenges not faced by their heterosexual counterparts. In particular, the question of when the parties’ economic partnership commenced often arises in same-sex divorces. The date of marriage is often a vital date in divorces, as it governs the valuation of marital property and it may affect the amount and duration of spousal maintenance. But due to historic discrimination, same-sex couples often formed economic partnerships for years without the ability to legally formalize their union through marriage.
There are innovative arguments to ensure that contributions occurring before same sex marriage was legal are accounted for in subsequent divorces. First, New York law recognizes the validity of civil unions entered into in other states prior to same-sex marriage becoming legal. For example, in Debra H. v. Janice R., 14 N.Y.3d 576 (2010), the New York Court of Appeals granted comity to a Vermont civil union—which afforded the same rights as marriage to same sex couples.
Second, equitable arguments can be made that the economic partnership should be recognized to have existed prior to the marriage, as unconstitutional discrimination prevented same sex couples from marrying in the past. These arguments can be asserted under the statutory catch-all factor in equitable distribution that the Court may consider “any other factor which [it] shall expressly find to be just and proper.” These arguments may also be asserted under constructive trust jurisprudence.
Having previously represented parties in same-sex divorces, Andrew Coyle is prepared to address the challenges faced by parties in LGBTQ divorces.