Warshaw Burstein LLP | LGBTQ Family Law Practice | FAQs
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Though the answers to most questions vary based on the specific circumstances involved, we will try to give you general answers to some of the most frequently asked questions asked by clients.

  • LGBTQ individuals were legally prevented from marrying a person of the same-sex in New York until 2011.  Indeed, the right of LGBTQ individuals to marry someone of the same sex was not recognized as a fundamental liberty under the United States Constitution until 2015 when the Supreme Court of the United States found such a right in the landmark decision of Obergefell v. Hodges. The length of the marriage (i.e., whether the length of the marriage is defined starting with the date of legal marriage or a prior date) could have a significant impact on what assets are considered by a court to be part of the "marital estate" and therefore available for distribution between the spouses, how these assets are distributed between the divorcing couple and the extent to which spousal support is available under New York’s maintenance guidelines.  As a result, legal arguments have developed asserting that a court could “tack” the length of the parties’ pre-marital relationship onto the parties’ marriage.
  • There are a number of legal theories available to utilize in order for an individual to assert that he/she has standing to file a claim to custody of and access to a child he/she has raised.  The Court of Appeals broadened the historical definition of parent so that courts may now consider factors beyond just biology and legal adoption.

    Following the decision by the Court of Appeals in Brooke S.B. v. Elizabeth A.C.C., (discussed on our home page) the doctrine of equitable estoppel may now be used by an individual to establish standing in a legal proceeding to seek custody of and access to the child he/she has raised (i.e., the “petitioner”).  Based upon this doctrine, the biological or adoptive parent is precluded from claiming that the petitioner is  not a parent if the petitioner can demonstrate that: 1) the biological or adoptive parent consented to the petitioner forming a relationship with the child; 2) the petitioner provided emotional and financial support to the child sufficient for the child to have formed a bond with the petitioner; 3) the parties and the child lived in one residence at some point during the child’s life; and, 4) it is in the best interests of the child to maintain a relationship with the petitioner. 

    In some instances, New York courts have utilized the marital presumption of legitimacy (i.e, a child born of the marriage is presumptively the child of both parties to that marriage) and have applied this presumption to confer parental standing on a spouse who is not biologically related to the child of the marriage nor an adoptive parent of that child.

    In Brooke S.B. v. Elizabeth A.C.C., the New York Court of Appeals has even suggested that “extraordinary circumstances” might exist in certain situations so that remedies specific to LGBT individuals  could be applied to establish parentage for an individual not biologically related to a child or its adoptive parent, especially if the intent is to remedy New York’s prior refusal to permit same-sex couples to marry.
    In addition, the New York Court of Appeals enunciated a test in Brooke S B. v. Elizabeth A.C.C. whereby if a party can show, by clear and convincing evidence, that there was a pre-conception agreement to conceive and raise a child together and the parties actually raised the child together for some period of time, then each individual to such an agreement has standing as a parent to seek custody of and access to the child they have raised.

    These are but a few of the potential legal theories being utilized today to insure a child is not torn from his or her parent.
  • With the passage by the New York Legislature of the Marriage Equality Act in 2011, the Court of Appeals’ decision in Brooke S. B. v. Elizabeth A.C.C. in 2016 and the US Supreme Court’s decision in Obergefell v. Hodges in 2015, the marital rights of the LGBT community in New York are equal to those of their heterosexual counterparts.  Whichever sex a transgender individual is identified as by a governmental authority, the individual's marriage (whether it be deemed heterosexual or same-sex) is protected and thereby valid.
  • A civil union entered into in another State can be dissolved by a judge in New York so that the parties to the civil union would be free to marry someone else. The Appellate Division, Third Department, in Dickerson v. Thompson, found a court may use its equitable powers to dissolve such a relationship. 

    However, it is not clear whether a New York judge has the authority to distribute the property acquired during that civil union. A trial judge sitting in upstate New York held in O’Reilly-Morshead v. O’Reilly-Morshead that he was not authorized by New York Domestic Relations Law (the “DRL”) to distribute property acquired during a civil union because such a union did not constitute a marriage; according to this trial judge, the DRL relates to the disposition of property acquired during a marriage.  Although this trial judge’s decision in O’Reilly-Morshead v. O’Reilly-Morshead declining to distribute property acquired during a civil union was appealed to the Appellate Division, Fourth Department, the Appellate Court declined to hear the appeal.

    However, another legal theory may be available. Prior to Obergefell v. Hodges, same-sex individuals could not marry each other, and/or their relationships were not recognized in every jurisdiction within the country.  As a result of this past discrimination, parties to a civil union may be able to argue that they had no choice but to enter into a civil union in their jurisdiction.  As a consequence, ”extraordinary circumstances” might exist warranting a New York court to create a result whereby past discrimination is remedied by the court distributing the property acquired by the parties during the civil union.
  • We encourage same-sex couples to enter into such agreements because the present state of family law  for the LGBTQ community continues to be in flux.  One constant is New York’s strong public policy favoring agreements between parties.

    A prenuptial agreement may address numerous issues relating to divorce and even death.  Parties to such an agreement may waive the right to receive spousal support upon divorce; alternatively, the amount and duration of spousal support can be fixed in such an agreement.  Some parties stay silent on such an issue and allow a Court to make the determination at the time of divorce. 

    Similarly, parties to a prenuptial agreement may waive their right to assets of the other party to the marriage, decide how assets will be divided upon a divorce, or even characterize some assets as separate property and others as martial property. The possibilities are endless as to what can be covered in a prenuptial agreement when it comes to the division of assets.  There are a few limitations, and we, of course, would make sure you did not run afoul of those limitations. 

    Pre-nuptial agreements may also address issues arising upon a spouse’s death. A pre-nuptial agreement should not be used in place of a will or a trust; however, a spouse’s intentions or a waiver of a spouse’s estate can be discussed in such an agreement. 

    The one area in which parties to marriage may not enter into pre-planned arrangements is the custody and care of any future children they intend to have; similarly, any agreements regarding child support of future children are similarly unenforceable.  
  • If parties in a relationship do not wish to marry, they should seriously consider entering into a cohabitation agreement.  These agreements can address the payment of the parties’ joint expenses as well as how property will be held.  If real estate will be owned jointly, it is best to have an agreement between the parties setting forth how title will be held to the property they acquire during their relationship, how expenses relating to the property will be paid as well as the disposition of the property should the relationship end.  It tends to be more advisable to work out these agreements during the best of times, rather than at the worst of times.  Be mindful that as a married couple, the transfer of property is, for the most part, a tax free event; on the other hand, transfers between unmarried individuals have many tax traps.  It is imperative that you consult with a tax professional, such as one of our tax attorneys, so as to structure the purchase and subsequent sale of assets in the most tax advantageous way.
  • Numerous state and federal rights and incurring obligations arise upon marriage. For instance, spouses may transfer property between themselves without any income or capital gain tax; however, transfer taxes may apply to such transactions. Conversations between spouses are privileged and thereby confidential; a court may not compel a spouse if against the other. Only a spouse (as opposed to children) is automatically entitled to one-third of his or her spouse's estate upon death, which is commonly referred to as the spousal right of election. Spouses have the obligation to support each other financially during and, possibly, after the marriage; such support is pursuant to guidelines promulgated by the New York State Legislature. Similarly, the assets acquired during the marriage are distributed upon divorce equitably and the court considers more than twenty (20) factors in such a distribution. In addition, certain rights regarding retirement and social security benefits have developed by Federal statute and serve to protect spouses from disenfranchisement. These are but a few of the more than 2,000 State and Federal rights and obligations available to or imposed upon spouses when they marry.