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Legalized Marriage for the LGBTQIA+ Community: Has it Resolved All Issues?

Legalized same sex marriage has only been available across the United States since June 26, 2015, as a result of the Supreme Court 5-4 decision in Obergefell v Hodges. This decision granted the LGBTQ Community the universal legal right to marry in any state in the United States. Prior to that, only some states permitted same sex marriage while others merely gave the right to a Civil Union. Many people do not understand that a civil union does NOT convey the same rights as marriage. However, the majority of states still did not have laws in place to protect LGBTQ couples and their families.

Many people believe that by giving the legal right to marry to the LGBTQ Community, it automatically conveys equal rights and in doing so has resolved all issues faced by these families. Unfortunately, that is far from true. Many of the concerns continue to exist, notwithstanding the legal right to marry. That is not to say that there are not many beneficial rights granted as a result of a legalized marriage, but there are some kinks.

One of the more significant financial rights gained by legal marriage is the right to your spouse’s social security benefits. Notwithstanding all the benefits afforded, some people still choose not to get married because of other tax consequences or for estate planning objectives. Of course, it remains entirely an individual’s choice, but at least the right to marriage is available to everyone.

So, what problems still exist? Well, there unfortunately are too many to cover by this brief article. But what should be made abundantly clear is that the Court System is the last place an LGBTQ couple or family should be, particularly in the event of a divorce. You would think that application of divorce laws would be universally applied and the effect for a couple whether same sex or heterosexual would be similar. Unfortunately, not having had the legal right to marry for so long puts same sex couples at a distinct disadvantage. In New York State, when you commence a divorce action, the date of filing sets the date of valuation for most marital assets. Strictly speaking, the duration of the marriage is considered to be from the date of (legal) marriage to the date of commencement of a divorce action. For many LGBTQ couples this presents a significant problem since many have been together long before the right to marriage even existed.

When considering “marital assets” during a divorce, the Court must adhere to this strict guideline. This creates different dynamics for the LGBTQ Community whose couples have been partners in life for many years prior to being able to legally marry. A couple’s specific planning, whether it be for financial security for their future retirement; how they run their daily and monthly budgets and expenses; or how they choose to make purchases of personal and real property may vary. However, from the Court’s perspective, upon a filing for divorce, the Court will NOT look back at the family’s financial history or planning objectives. The Courts are only going to look at the hard numbers and names or title of ownership of assets as of the legal date of marriage. The Court will only be concerned with what existed as of the legal date of the marriage, the date of filing for divorce and what happened in between, even if a significantly shorter time than the couple chose to be committed to each other and share their lives and resources. Therefore, the concept and application of separate versus marital property takes on a different meaning and impact for an LGBTQ couple who finds themselves in court.

Normally separate property is property that existed and was owned by one person prior to a marriage. That could be be, for example, a down payment on a house that ends up jointly owned or an inheritance (whether before or during the marriage) that is maintained as separate property. However, for couples that have been together in some cases for several decades or more, prior to being able to marry, they may have commingled what was technically separate property; or at the time they were able to legally marry what was separate is now joint. Therefore, there will be no accounting for what had been separate property as there would be for a heterosexual couple, i.e., the purchase of a house that is now in joint name, savings or money market or IRAs or retirement assets that are in one person’s name alone, since they were not married at the time of its accumulation. Technically, the Court will look at those assets only from the date of the marriage and only consider the marital portion of those assets to be from the date of the marriage to the date of the filing.

As an example, if a couple is in a 36-year committed relationship, but was only able to marry six (6) years ago, the Court will not consider the 30 years prior to the date of marriage or the growth or development of their retirement assets, even if they were part of a financial plan made by the couple for “their” future life and retirement. Further if a couple contributed resources to one another’s retirement assets according to a plan they made for their mutual benefit for the future, that will NOT be considered by the Court. Likewise, accrual or growth of retirement accounts before the date of marriage WILL NOT be considered marital property.

This may seem extraordinarily harsh, and I believe it is. However, the likelihood of the Court’s treatment in such instances was affirmed directly by several NY Supreme Court judges at a recent Mediation Symposium. The judges were asked directly whether they would look at the totality of an LGBTQ relationship and how they would address a lesbian or gay couple that had been together for many years before they were permitted to marry; the judges’ indicated they would be required to adhere strictly by the law. Therefore, the Courts are only permitted to look at the time from the date of the marriage to the date of commencement for divorce for the respective valuations of assets, the ownership of assets, and separate versus marital status of these assets, but not what the parties may have intended to be for their joint benefit.

Notwithstanding there being some progressive Judges on the panel, it was clear that the LGBTQ Community is truly at risk, when we put our relationships in the hands of the Court. I know that may be true for any couple who finds themselves in the midst of a litigated case, however it is especially dangerous and significantly impactful for an LGBTQ Couple and their family.

So, what is the alternative? Well, one could try to avoid divorce all together, but when that is inevitable, you can control your and your spouse’s destiny by choosing an alternative known as the Collaborative Divorce Process. In this forum your long-term relationship and financial planning can be recognized and contemplated in the settlement agreement. Further a team of professionals are available to help secure your family’s future in a manner you see fit and specific to your family dynamic. These professionals help find creative solutions. Together with a team the LGBTQ Community can divorce confidentially and with dignity. The benefits or alternative methods/processes, of Collaborate Divorce and Mediation, will protect your family from the potential harm of the Courts.


For a free consultation about the Collaborative Divorce Process, contact any one of the professionals of the LICDP.


Written by Concetta G. Spirio, Esq.


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