Divorce Brings Complications for Same-Sex Couples
9.18.2025
Same-sex couples have a lot to consider when separating – especially if they started their relationship before states enacted marriage equality laws.
The New York State Bar Association recently hosted a Continuing Legal Education course on the challenges facing same-sex couples as they try to end relationships and figure out dividing property and child custody. Margaret Donohoe and Paul Talbert, partners at Donohoe Talbert, led the discussion.
“You’re able to list over 1,000 benefits associated with being married that are not available to unmarried couples,” said Donohoe, including inheriting property, automatic recognition of parentage of children, and medical visitation rights. “So, in that sense, the right to marry, the rights associated with marriage are rather profound and sweeping.”
The speakers explained that while New York State enacted marriage equality in 2011 and the federal government did so in 2015 with the Obergefell v. Hodges Supreme Court decision, many same-sex couples lived together, raised children and shared assets long before then.
This can complicate divorce proceedings for same-sex couples, as New York law typically counts the date of civil marriage as the start of a marriage, and not a religious marriage or the start of cohabitation. However, there are exceptions.
In one case, two women married in a Jewish religious ceremony in 2005, and in a civil marriage in 2011. When they divorced in 2019, one spouse argued that the marriage started in 2005 rather than 2011. Eventually, the New York Supreme Court Appellate Division, Second Department, ruled that the marriage began in 2005.
“This was what they call a remedial statute, meaning it was changing something in the law that was wrong,” said Donohoe. “There is a preexisting body of case law – that is still growing – that even in the absence of a civil marriage license, a religious marriage will be treated as a domestic marriage for economic purposes in New York.”
Similarly, same-sex couples with children often ran into complications during divorce proceedings. Courts were left to determine if family relationships, parental intent, or biological parentage should determine custody, child support, and visitation agreements.
Famously in 1991, the Court of Appeals ruled that a non-biological mother was not a mother, even though she had an established relationship with the child. Judge Judith Kaye dissented, writing “the impact of today’s decision falls hardest on the children of those relationships, limiting their opportunity to maintain bonds that may be crucial to their development.”
In 2016, the Court of Appeals overruled this decision, citing Kaye’s dissent that maintaining family bonds is important for children.
To clear up these issues, the New York Legislature enacted the Child Parent Security Act in 2021. The act established legal rights for parents who use assistive reproductive technology, like gestational surrogacy. It also codifies that intent, rather than biology, can determine who is the legal parent of a child.
“This is not an adoption procedure, this is parentage from birth of the child,” said Talbert. “It sets a framework with clear indications of intent, and the consent of everyone involved prior to birth to determine parentage – regardless of the gender of parties involved.”
The speakers said that for couples who are unmarried but want to protect their rights, it is important to make sure that there is a trail of paperwork establishing that a partner is the designated beneficiary for property and finances, as well as the rights to power of attorney and healthcare proxies.
“Estate planning is another area,” said Donohoe. “All of our clients should be doing estate planning, but if we have an unmarried couple who wants to provide for each other in the event of death, they must do this.”
The seminar was sponsored by the New York State Bar Association’s LGBTQ+ Law Section, Family Law Section, and Real Property Law Section. View the full program here.
