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Is divorce the same for everyone?

On Behalf of | Aug 22, 2022 | Child Custody, Divorce |

No two divorces ever look exactly the same. But, is there a difference between the experiences of gay divorcees and heterosexual divorcees?

Marriage equality vs. divorce equality

Since about 2015, marriage equality has been the law because it was recognized as a constitutional right by the U.S. Supreme Court. And, with marriage equality naturally should have come divorce equality as well. However, state laws take time to change, and even where they are facially neutral, there may still be differences in how they are applied to same-sex couples, even if not intentionally by the law or the family law judge.


Perhaps, the most different experiences can occur for Long Island, New York, same-sex or other non-“traditional” parents going through a divorce. The problem stems from the law’s emphasis on biology. Since same-sex marriage has been recognized for less than a decade, and child custody laws have been around for hundreds of years, the two do not always align.

For example, if one of the parents has a biological connection to the child, the family law judge may give them primary custody. If one spouse actually carried the child, that parent may also receive primary custody. Then, surrogacy can also make child custody and support complicated as well. These are simply not problems that most heterosexual couples face when they divorce.

Determining the marital estate

Another difference that non-heterosexual divorcing couples can experience is in the property division phase. This is because of how the marital estate is determined. During the divorce property division phase, the marital estate is separated, which is the culmination of all the property and assets accumulated during the marriage. All the property and assets accumulated prior to the marriage are left with the person who brought them into the Long Island, New York, marriage.

For heterosexual couples, this is, usually, not an issue because their time pre-marriage is almost always shorter than their time together during the marriage. This means they simply do not have a lot of time to create a lot of potentially joint property prior to the marriage. This is not always the case for same-sex couples as they could only legally marry for about 7 years now.

This means that, for long-lasting couples, their premarital estate could be much larger or equal to the marital estate. Obviously, this can complicate the process and lead to odd consequences, like property windfalls.

Can the issues be avoided?

Yes. Long Island, New York, same-sex couples can avoid a lot of the ambiguity, confusion and odd results if they put pen to paper now (prenuptial and postnuptial agreements). Take it out of the hands of a randomly assigned divorce judge.