While both same- and opposite-sex marriages are equally legal in the U.S., there can be some differences when it comes to divorce. One of the major ones is that same-sex marriages have only been legal in New York since 2011 and federally since 2015, but many same-sex couples were essentially married for much longer. How does that affect property division and alimony?
First, your domestic partnership
Many LGBTQ couples were already in domestic partnerships when same-sex marriage was made legal. In some states, these relationships were automatically converted into marriages once same-sex marriage was legalized. If you were in a domestic partnership, you will need to determine whether that partnership was converted to a marriage. If not, you may need to dissolve the domestic partnership agreement in addition to divorcing.
Property division and alimony
New York is what’s called an “equitable division” state for property division in divorce. That means that the division of your assets and debts is to be done fairly, but not necessarily 50/50.
One problem for same-sex couples who were in committed, marriage-like relationships before same-sex couples became legal is that only the marital estate is divided.
The marital estate is, more or less, the property and debt that you share because it was obtained or taken on during the course of the marriage. It includes most of your assets and debts, regardless of who is named on any official paperwork, as long as they accrued during the marriage. (There are some assets, like gifts and inheritances, that are separate from the marital estate.
If your committed relationship goes back further than 2011 or so, you’ll have a smaller marital estate than you would have it you had been legally married the whole time.
Similarly, the length of your marriage can affect the form of alimony known as post-divorce maintenance. That’s because the length of the marriage is a major factor in whether maintenance will be awarded and for how long. A very short marriage could end with no alimony order at all, while one of substantial duration might result in relatively long-term or even permanent (nondurational) maintenance.
If you’re in a long-term relationship and have been married since legality, you may not receive credit for the entire time you’ve been together.
Negotiate to have your full relationship considered
One way to have the entire duration of your committed relationship considered in property division and alimony decisions is to negotiate a marriage settlement. When you negotiate a settlement, these terms can deviate from what a judge would have the authority to order.
To get started, talk to an experienced divorce attorney.