In the state of New York, the procedure for same-sex divorce in New York is treated the same as traditional divorce procedure. If you either entered into a same-sex marriage in New York or entered into a same-sex marriage in another state but are a resident of New York, you are qualified to file for divorce in New York. The only requirements are that when a same-sex couple decides to separate, they must file divorce papers and establish the terms of their separation.
What are the Legally Recognized Reasons for Divorce in New York?
Before same-sex couples can divorce in New York, they must (1) meet the residency requirement, and (2) have a “ground” for divorce. New York became a no-fault divorce state in 2010, but still has some of the grounds for divorce that include:
- Domestic violence;
- Cruel and inhuman treatment;
- Emotional or verbal abuse;
- Long-term abandonment;
- Long-term incarceration;
- Divorce after a legal separation; and/or
What Forms Do I Need to File for Same-Sex Divorce in New York?
If you plan to file for a same-sex divorce due to irreconcilable differences, you and your spouse must have lived separately for at least one year prior to the date of filing. You also need to have a legal separation agreement. If you are alleging one spouse is at fault for the divorce, then there is no waiting period, provided you can prove that the spouse is at fault. For instance, you must prove that the spouse physically abused you.
You will need to file a Summons with Notice that places your spouse on notice that you are beginning the divorce action and sets forth the grounds which your action for divorce is seeking. You also need to file a complaint that sets forth the details concerning the marriage and the grounds that you are alleging.
The Complaint is usually filed with the Summons, but they can be filed separately. Once you have all the forms filed with the Supreme Court of the State of New York, you will need to serve your spouse to give them notice of the divorce proceedings. Once you spouse receives the Notice of the divorce proceedings, they have 20 days to file an Answer with the court to agree or disagree with what you say in the divorce Complaint. You will know if your spouse filed an Answer to the Complain because they have to mail a copy to you.
What are the Residency Requirements for Same-Sex Divorce in New York?
All same-sex couples must meet at least one residency requirement in order to be eligible to file for a same-sex divorce in New York:
- You and your spouse entered into a same-sex marriage in New York, and at least one you has lived in New York for one year or longer;
- You and your spouse entered into a same-sex marriage in another state, but at least one of you has lived in New York for one year or longer; or
- At least one of you has lived in New York for at least two years.
How to File for a Same-Sex Divorce in New York
If you meet one of the above conditions, you may file for a same-sex divorce. There are two types of divorce: contested divorce and uncontested divorce. A couple may file for a same-sex uncontested divorce when there is no marital property or child support/child custody issues for the court to handle. This may be because no marital property or children exist, or this may be because the couple entered into a marital property agreement or child custody and support agreement.
A couple may file for a same-sex contested divorce when one spouse alleges the other is at fault or if there are unresolved issues related to the children or marital property.
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What are the Tax Implications of Same-Sex Divorce?
While state laws may afford same-sex couples the same rights to divorce as opposite-sex couples, the interactions of state and federal law complicate the issue. The IRS announced that it will recognize same-sex marriages as married for federal tax purposes. However, the state the couple resides in may not recognize the marriage and could require each spouse to file separately.
In 2013, the Supreme Court overturned the Defense of Marriage Act (DOMA), allowing same-sex couples to receive federal benefits, including social security benefits as well as federal tax benefits. This includes provisions governing:
- Filing status;
- Personal and dependency exemptions;
- Standard deductions;
- Employee benefits;
- IRA contributions;
- The earned income tax credit; and
- The child tax credit.
Do I Need a Lawyer for a Same-Sex Divorce in New York?
While same-sex divorce is identical under New York law to traditional divorce, this does not mean it is an easy process. Divorce in general is incredibly complex, and divorce litigation can be lengthy and emotionally exhausting.
If you are interested in filing for a same-sex divorce in New York, you need to discuss your case with a New York divorce lawyer. A New York divorce lawyer can advise you on New York divorce law, evaluate your options, and help you protect your interests in your property and children.