Same-sex couples have had the right to marry in New York since the passing of the 2011 Marriage Equality Act. The act afforded them all the privileges afforded to any married couple, including the ability to divorce.
While New York became the sixth state to legalize gay marriage in 2011, it took a little longer for the federal government to catch up. The Defense of Marriage Act (DOMA), passed by Congress in 1996, defined marriage for federal purposes as between one man and one woman. Many states thereafter passed state laws that banned gay marriage. It wasn’t until the U.S. Supreme Court declared parts of DOMA unconstitutional in two separate rulings (2013 and 2015) that all 50 states had to recognize same-sex marriage.
It was this time gap that created confusion on how to apply marriage and divorce laws to same-sex couples. Some of the confusion continues, including how to determine spousal maintenance.
Same-Sex Spousal Support Is the Same – And Different
Legally married couples who divorce have the right to equitable distribution, child custody, child support, and spousal maintenance. Same-sex divorce is no exception, but there are complexities that a skilled attorney at Friedman & Friedman PLLC, Attorneys at Law can navigate.
Heterosexual couples have always had the right to marry. The date of their union was one of their choosing. They didn’t have to wait for permission from the state or federal government. This fact makes determining when the marital relationship began cut and dry.
The same cannot be said about same-sex couples. Many LGBTQ+ couples lived for all intents and purposes as a married couple long before they were able to have a legally sanctioned union. They bought homes, had children, visited in-laws, and did all the other things opposite-sex couples did in their marriages. They wanted to get married but couldn’t. An argument can be made that the marriage really began long before any official ceremony occurred.
Why is this important? The length of the marriage is used to determine how long a former spouse will receive spousal support under New York law.
The following criteria generally apply to New York spousal maintenance:
- A spouse may receive up to 5 years of maintenance in marriages that last up to 15 years.
- A spouse may receive up to 8 years of maintenance in marriages that last up to 20 years.
- A spouse can receive maintenance for up to half the length of the marriage in unions lasting more than 20 years.
A judge looks at many factors when deciding whether to award support. These factors include earning capacity, the standard of living established in the marriage, the need for education or career training, and more. The payor spouse’s income is considered as well as if they are also paying any child support. In addition to spousal maintenance provided after a divorce, a spouse might also be awarded temporary spousal support during the divorce process.
Advocating for Spousal Maintenance in Same-Sex Divorce
New York statutes do not specifically address the pre-marriage relationship in same-sex spousal support. That’s why it is critical to have a seasoned and skilled attorney representing you. We have more than 90 years of combined experience in all areas of matrimonial and family law,, including those affecting the LGBTQ+ community.
Learn more about how our legal experience can benefit your same-sex divorce in a no-cost initial consultation. Schedule by calling (914) 873-4410 or submitting this online form.