Gay Marriage Rights Also Bring Equality to Divorce

August 19, 2015

New York made headlines earlier this summer when it passed legislation legalizing same-sex marriage. Homosexual couples in New York, and nationwide, celebrated the new law. Understandably, fewer headlines involved another right for same-sex couples – the right to divorce. After all, for same sex couples seeking to spend their lives together in marriage, divorce is not something newlyweds are likely to immediately consider. Yet the ability to obtain a legal divorce is an important right for same-sex married couples.

No hard data exists on the divorce rate for gay couples in states that allow gay marriage. However, a study conducted by the University of California Los Angeles Law School’s Williams Institute found that about 2 percent of same-sex couples dissolve their relationship in any given year, which is approximately the same rate as among heterosexual couples.

Despite an inability to predict with any certainty the divorce rate among homosexual couples in the future, certainly same-sex divorce will become an issue for many gay married couples.

Even before the new marriage law, New York allowed same-sex couples to divorce. However, the law was a mixture of various court rulings and judges’ decisions, not something outlined clearly by statute. Now that same-sex marriage is considered equal to heterosexual marriage, the law surrounding divorce in New York just got a lot clearer. All of the rights given to heterosexual married couples, such as spousal support and property division, will now apply to married homosexual couples.

Some gray areas remain. If one member of the couple has a biological child, for example, and the other spouse has not legally adopted the child, it is not clear what rights the non-biological parent has regarding custody and visitation. A biological parent has certain constitutional rights to raise their children; a same-sex partner who shares in parental and financial responsibilities, but is not related by blood or adoption, does not share those same rights.

While no one wants to get divorced, the legal ability to divorce is an essential part of family law and can protect divorced couples from insurmountable living expenses or child rearing costs.

In addition, while divorce is now less complicated and offers more protection for gay couples, a prenuptial agreement may still make sense for those with significant assets, children from a previous marriage or for those who want to spell out financial resources and obligations for the marriage.

If you are contemplating a divorce, prenuptial agreement or need more information, contact a family law attorney in your area.