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Marriage Equality Legislation May Protect Your Equal Rights, But Does It Protect Your Assets?

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On July 24th, 2011, the first day that New York’s same-sex marriage law goes into effect, each of the City Clerk’s five borough offices will conduct a public lottery, allowing a total of 764 same-sex couples to wed on this historic day. The necessity of the lottery is due to the high demand for services that the State has seen since the new marriage law passed through the State senate. The race for same-sex couples to tie the knot, however, will have ramifications that extend beyond an increase in flower sales and wedding venue profits. Although the approval of the marriage equality legislation is an occasion to celebrate, it remains true that same-sex relationships are no less susceptible to divorce than heterosexual marriages. According to a 2008 report from the Williams Institute at the University of California Los Angeles, the annual rate of same-sex marriage divorces was nearly identical to the opposite-sex divorce rate. The good news, however, is that the passing of New York’s new marriage law will make it exponentially easier for same-sex couples to obtain a divorce in New York than it previously had been. Although New York has recognized same-sex divorce since 2008, when an appeals court found that a same-sex marriage performed in Canada could be legally recognized in New York for the purposes of dissolving the union, it has since been applied on a case-by-case basis. The newly passed marriage equality legislation, however, makes it so that same-sex divorce, along with opposite sex divorce, will be governed by New York’s Domestic Relations Law. Since same-sex divorce will no longer be governed by court rulings and judge’s opinions, same-sex couples will now be able to benefit from the same consistency in divorce proceedings as their heterosexual counterparts. However, with same-sex divorce now rooted in statute, same-sex couples will be subjected to the same equitable distribution laws as opposite-sex divorce proceedings. The battle for marriage equality in New York has spanned over decades, and in that time, while waiting to be able to legally marry, many same-sex couples have accumulated a great deal of wealth, which may prove to be a hindering factor to a smooth divorce proceeding in the future. Many heterosexual couples have avoided such potential problems by entering into a well-drafted pre-nuptial agreement prior to marriage, thereby mutually agreeing on how their property will be split in the case of divorce. Same-sex couples can now also use a pre-nuptial agreement as a tool to help make a potential future divorce more amicable.

If you are a same-sex couple considering marriage and are interested in protecting your assets with a pre-nuptial agreement, please
contact a
Long Island Divorce Lawyer at the Law Offices of Jay D. Raxenberg, P.C.

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