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Same-Sex Marital & Divorce Issues

Same-Sex Marital & Divorce Issues

In New York, same-sex couples have the same rights associated with divorce as heterosexual couples, however; gay and lesbian partners are often not perceived this way by society. Same-sex couples are often left with more emotional and financial costs as well – depending on the circumstances. Additionally, according to the American Psychological Association, there is very little empirical research on same-sex divorce. As such, it is possible for homophobia and heterosexism to influence legal decision-making in same-sex divorce cases. Today, we look at same-sex divorce issues to help better understand how to protect the rights and interests of same-sex couples.

Lack of Resources

Same-sex couples navigating a divorce may not have the same amount of support and resources as heterosexual couples. This is largely due to pressure from friends, family members, and colleagues who may not view their same-sex union as a marriage. As such, same-sex couples may feel isolated, depressed, and lonely during a divorce. This is not indicative of all same-sex unions, however; due to homophobia and opponents of same-sex marriage, it is an issue that needs to be addressed.

Discussing divorce with your family is already tough enough as is. Imagine if your family was not supportive of your marriage in the first place. It is important for a couple going through a divorce to ensure they can find support and resources that will help guide them through the process. Experienced attorneys as well as therapists that specialize in LGBTQ rights and issues are a great place to start.

Issues Inheriting Social Security Benefits

The federal government legally recognizes same-sex marriage, which means same-sex couples have a right to each other’s benefits. All legally married, same-sex couples have the right to qualify for:

  • Immigration status
  • Federal tax benefits
  • Employee benefits

Same-sex couples may face issues inheriting Social Security benefits though. The Social Security Administration only recognizes marriages that are valid in the state where a couple resides. What this means is if a same sex married spouse lives in any other state besides the state he/she was married in, he/she would not qualify for Social Security benefits.

Tax Concerns

Tax matters can be more complicated for same-sex couples than heterosexual couples. Same-sex couples in a civil union or registered as domestic partners do not qualify for federal tax benefits. You must be married to qualify, however; you must also live in a recognition state to receive state benefits. It is important to note that since the Marriage Equality Act took effect, all couples, whether same-sex or different-sex, are treated equally under the laws of New York. The IRS recognizes a marriage between a same-sex couple that is a legal marriage under the laws of jurisdiction where the marriage took place.

Marital Property

Same-sex marriage was not legal in New York until 2011, which meant same-sex couples spent more time unmarried in a domestic partnership. As such, more same-sex couples get married later in life, leaving them more time to accumulate wealth, property, and other assets. It may be more difficult to determine what is considered marital property if both individuals in the relationship have contributed financially to the same household.

Child Custody & Visitation Issues

Couples who formed a family before same-sex marriage was legal may have to face additional obstacles. If their children were adopted in other states or only one spouse adopted the children, figuring out child custody and visitation rights could prove contentious and complicated. While the Marriage Equality Act has remedied some of these issues, the various challenges non-adoptive parents face during divorce remain.

If you are facing any of these issues or require an experienced Long Island divorce specialist's services, contact our firm online or via (516) 688-0088.


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