New York marriage bill paves way for same-sex divorce

As New York's same-sex couples head to the altar to celebrate their newly won right to marry, they can take comfort in the fact that, if it doesn't work out, their right to get divorced in the state just got a lot easier as well.

State Senators on Friday voted 33-29 to approve marriage equality legislation introduced by governor Andrew Cuomo, a Democrat in his first year of office. New York will become the sixth and most populous US state to allow gay marriage.

"One of the so-called benefits to marriage is actually divorce," said Ruthann Robson, professor of law at the City University of New York. "If same-sex marriage is recognised, same-sex divorce would be recognised too."

In fact, same-sex divorce was first recognised in New York in 2008, when an appeals court found that a same-sex marriage performed in Canada could be legally recognised in New York for the purposes of dissolving the union.

But without a formal law on the books, same-sex divorce in the state has proceeded on a case-by-case basis, creating some degree of uncertainty for same-sex couples looking to undo their unions, said Bettina Hindin, an attorney at Raoul Felder and Partners, who has represented same-sex couples in New York divorce proceedings.

Since same-sex marriages are now legally equivalent to heterosexual unions, same-sex couples' right to divorce will be rooted in New York's Domestic Relations Law, rather than cobbled together out of court rulings and individual judges' decisions, according to Hindin.

"A lot of things are going to be easier" with legalized same-sex marriage, Hindin said. "It's still somewhat out of the ordinary; this will make things far more ordinary."

If same-sex couples married in New York leave the state, however, they may run into trouble getting a divorce, especially if they end up in one of the 30 states that do not recognize same-sex marriage, said Susan Sommer, senior counsel at Lambda Legal, which advocates for gay rights.

In some states, such as Wyoming, courts have found a right to divorce even absent the right to marry. In other jurisdictions that don't recognise same-sex marriages, such as Texas, attempts at same-sex divorce have yielded mixed results.

In 2010, two trial courts in Austin and Dallas granted two separate gay couples' petitions for divorce. The Austin appeals court upheld the ruling on appeal, while the Dallas appeals court did not, ruling that the courts lacked authority to issue divorces for same-sex couples. Both cases are currently pending before the Texas Supreme Court.

"It can be a real bind for people, trapped in this legal limbo," Sommer said.

Still, same-sex relationships are no more susceptible to divorce than their heterosexual counterparts, Sommer added.

According to a 2008 report from the Williams Institute at the University of California Los Angeles, annual same-sex marriage divorce rates were about 2 per cent, nearly identical to the rate for opposite-sex marriage.

"People go into their marriages expecting everything to work out, and for the majority of people that's the case," Sommer said. "But stuff happens."

One issue that remains unresolved by the same-sex marriage vote is child custody, where one partner is a biological parent but the other has failed to adopt the child.

"Money is easy," Hindin said. "It's the children, the truly emotional piece of the relationship, that will be coming to the forefront and have to be dealt with by statute."