What is the same sex marriage law in New York?

In New York, in 2011 the legislature passed the Marriage Equality Act.  This law gives same sex couples the right to get married in New York State.  Under the law, out of state marriages for same sex couples are to be recognized in New  York.  Prior to the passage of the law, New York was, for the most part, recognizing same sex marriages performed in other jurisdictions, although the law was not abundantly clear in this state.  Currently, it is clear that New York State will not deny marriage license to same sex couples by reason of the couple’s genders.  Furthermore, all the rights, benefits and protections that opposite sex married couples enjoy now need to be afforded to same sex married couples by New York, whether they were married here or in another jurisdiction. There is no residency requirement to be married in New York therefore out of state same sex couples that wish to get married in New York can come here to “tie the knot”.  It is advisable to consult with a New York, Long Island or Nassau County Family Law Attorney if you have concerns about entering into or dissolving a same sex marriage.

The fact that New York recognizes a same sex marriage, however, does not guarantee that it will be recognized by every other state or jurisdiction.  As of recent times places that recognize same sex marriages include, but may not be limited to as the laws are frequently being updated:  California; Connecticut; Delaware; Iowa; Maine; Maryland; Massachusetts; Minnesota; New Hampshire; Rhode Island; Vermont; Washington; and the District of Columbia.  Some states, like New Mexico, will recognize out of state same sex marriages, while other states, like New   Jersey, will recognize some of benefits that out of state same sex married couples could enjoy.  Most other states do not recognize same sex marriages, wherever they were performed.  Whether the federal government will recognize the marriage performed in New York for couples living in jurisdictions that have not enacted marriage equality law is not always clear.  Various rights that may apply to married couples, that non-married couples do not enjoy are:  tax benefits; insurance; inheritance; property ownership; among other benefits.     

Parental rights is another important area of law effected by same sex marriage.  The spouse of a woman who gives birth to a child in wedlock will also be listed as a parent on the birth certificate whether that spouse is a man or a woman.  This, however, would not preclude a paternity case involving a man, not married to the biological mother.  Different rights apply to married male couples since neither of them is the birth mother or married to the birth mother.  Adoptions by same sex couples is an important area of law to help solidify the parental rights over a child as well as to aid in the recognition of the parental rights by other states and jurisdictions.

Guardianship, custody, parenting time (visitation), and orders of protection are areas of law that can be dealt with by same sex couples in the Family Court outside of the context of a divorce, or in the Supreme Court within a divorce or in a post judgment divorce proceeding.  Pre-nuptial agreements, separation agreements, and post-nuptial agreements are all now applicable to same sex couples prior to or after their marriages.  Divorce proceedings, are applicable to same sex married couples as they have been for opposite sex couples.  There is a residency requirement of at least one year for divorce proceedings to be filed in New York which might be a consideration for out of state couples that marry in New York but live elsewhere.

The same processes are available for same sex married couples when contemplating divorce or moving on with their lives.  Alternative dispute resolutions methods such as mediation or collaborative law, in my opinion are great options for couples interested in dissolving their marriages, if they are able to do it.  Litigation is always an available method for those who will not or cannot utilize mediation or collaborative law.  Please see some of my other blog entries about the various family law issues and methods to resolve family law disputes.  I am a divorce and family law mediator, collaborative law attorney, and a litigator.  Feel free to call to discuss your matrimonial and family law issues.  It would be our pleasure to speak with you about it. 




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