Bernfeld, DeMatteo & Bernfeld, LLP

Same-sex divorce is, of course, an inevitable issue in states like New York that have chosen to recognize same-sex marriage. States that have gone this route have taken great care to craft laws that apply equally and without distinction. In theory, same-sex divorce should proceed in the same manner and be governed by the same legal principles as any other type of divorce. Unfortunately, however, some divorcing same-sex couples have run into some unexpected challenges.

The most notable problem divorcing same-sex couples face is the fact that the length of their marriage does not always accurately reflect the depth of their relationships. This is because many same-sex couples lived together for years, or even decades, essentially acting as spouses before the change in the law allowed their relationships to be legally recognized. This disparity between the legal and actual length of the relationship can complicate divorce in several ways:

• The length of the marriage is often considered when awarding spousal support. A spouse in a same-sex marriage may be denied support because of the short duration of the marriage even though they had depended on a partner for financial support for years.
• Same-sex partners in a lengthy relationship may substantially comingle their property even though the law may still regard much of it as separate if it was acquired prior to the recognition of the marriage.

These problems should begin to decline and disappear as more time passes since the recognition of same-sex marriage in New York State. In the meantime, however, it remains a complicating factor in many same-sex divorces and an issue that the courts still struggle to confront. The New York City divorce attorneys at Bernfeld, DeMatteo & Bernfeld, LLP are aware of this potential issue and keep it in mind when assessing their clients’ chances at trial.