Same-Sex Divorce: The Residency Quandary

There are now twelve states that legally recognize same-sex marriage, the most recent state being Minnesota ― passing legislation permitting same-sex marriage on May 14, 2013. New York became the sixth state to legally recognize marriages between same-sex couples when it passed the Marriage Equality Act in July 2011. The Act allows all couples to marry within the state, whether they are residents of New York or of any other state.

However, New York’s liberal approach to residency for same-sex marriage is not shared when it comes to same-sex divorce. Under New York divorce laws, only a resident of New York can file for divorce. This leaves many separated couples in a quandary. When leaping at the chance to celebrate their hard-fought victory and formalize their relationship, few same-sex couples have considered the implications of a breakdown of their relationship. Statistics show that since same-sex marriages have been permitted, the rate of divorce has been close to the rate of divorce between heterosexual couples.

What are the residency requirements?

In order to be eligible to file for divorce, annulment, or separation in New York, you need to fulfill one of the five different tests for residency:

• You were married within the State of New York, and either you or your spouse has been a resident of New York for at least one year prior to filing the action
• You and your spouse lived in New York after getting married, and at least one of you has been a resident for at least one year prior to filing the action
• The basis for divorce, such as adultery, took place in New York, and at least one of you has been a resident for at least one year prior to filing the action
• The basis for divorce took place in New York, and both you and your spouse are current residents of New York
• You or your spouse has been a continuous resident of New York for at least two years prior to filing the action

Seek counsel

The right of same-sex couples to marry did not bring with it an equal right to divorce. If you do not reside within New York State and are considering filing for divorce in New York, arrange a consultation with a renowned New York same-sex divorce attorney for advice on your legal position.