New York Divorce Lawyers Preparing for Same-Sex Divorce

A City Room Blog Postby Clyde Haberman raises an interesting question: Same-Sex MarriageShould New Yorkers be expecting a wave of Same-Sex Divorce in the coming months, now that Same-Sex Marriage is legalized in the state?  While lawyers disagree on how many such divorces can be expected, they all agree that same-sex divorce will differ greatly from heterosexual divorce in some key ways.

For instance, child custody.  Suppose a lesbian couple marries and one of the partners takes steps to become pregnant and have a baby.  Unlike a heterosexual married couple, there is no certainty of what the other lesbian partner’s parental rights and obligations are to the child unless she goes through the adoption process.

Another problem is also where to get divorced.  Many states in the U.S. still do not recognize same-sex marriage (let alone facilitate it).  Should a same-sex couple marry and then move to such a state and then decide to divorce, the state could very well tell them there is nothing to dissolve, because in its books there was no marriage to begin with.

For reasons such as these, even though we all might like same-sex and heterosexual marriage and divorce to legally be exactly the same, they’re not.  Divorce lawyers, like Bettina D. Hindin, are “reading and parsing through everything” in the same-sex marriage laws to try to prepare for the new demographic of clientele that can be expected; it would be impractical to assume they’ll never represent a spouse in a same-sex divorce.  But some divorce lawyers feel there will be significantly less percentage of same-sex marriages ending in divorce as opposed to heterosexual marriages.  They feel that same-sex couples in New York (and elsewhere) have been together so long before marriage, they’re not likely to divorce at the rate heterosexual couples do – who these lawyers feel marry before even getting to really know their spouse.

There might be some truth to that line of thinking.  The majority of divorces between heterosexual couples occurs within the first 10 years of marriage.  It’s not unreasonable to assume that the longer a couple dates before marriage, the less likely it is that marriage will end in divorce.  But even if a married couple gets past the 10 year anniversary, their marriage can still end in divorce.  Perhaps at first the same-sex divorce rate will be significantly lower than 1 in 2.  But over time I think the numbers will start to correspond with heterosexual divorce rates, since younger same-sex couples will start to marry and possibly rush into it before they’re ready, as divorce lawyers feel heterosexual couples do now.