Homosexual Divorces issue – Rights of the Gay and Lesbian Community

by / 0 Comments / 53 View / February 7, 2009

The gay and lesbian community have seen a number of ups and downs in the past few years on the issue of gay marriage. Gay marriage has become a hot topic, not just in politics but with the courts. I have updated this post several times and it seems it becomes dated before I hit the “publish” button.

Now that homosexual couples can get married in New York, all the laws which applies to marriage and divorce under New York applies them (DOMA is a hot topic. Since the Supreme Court declared DOMA unconstitutional, the landscape is still changing).

Here’s a thought: In New York law, a child born during the marriage is considered of the marriage. If two women get married, and one has a child by artificial insemination, does that mean that the other woman is the legal parent? The answer is yes.

The point to this trend is that gay couples should understand the laws of divorce before they walk into marriage. Most traditional couples in New York already understand the concept of equitable distribution and maintenance. Gay couples should be aware that if they get married these rules will also apply. This includes getting prenupital agreements where appropriate.

Third, visitation rights of a partner. Under New York law, a non-biological parent, absent adoption, has no rights in a child. But, we are increasingly seeing gay couples where one of the partners has a child. However, both partners act as parents. What happens to the non-parent’s rights to visitation upon break up? If the child was not born of the marriage, the Court of Appeals has a shock for you. The non-biological parent will be liable for child support but have no rights to visitation. Keep your eye on this one, I predict this will change in the future.

Fourth, gay adoptions. This is even more complex, and I will save for another day.

The teaching lesson here, is that if you intend to get married, research the law first. Perhaps consult with a matrimonial attorney. To be really safe, execute an agreement to protect your rights from the current shifts in law. If you think and plan first, you are in a better position to protect yourself.

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