The Second Circuit became the the second in the nation to strike down the Defense of Marriage Act as unconstitutional. In Windsor v. United States, 12-2335-cv, the U.S. Court of Appeals for the Second Circuit upheld a ruling by Southern District Judge Barbara Jones that the 1996 law that defines marriage as involving a man and a woman was unconstitutional.
A majority of the three-judge Second Circuit panel, in a ruling by Chief Judge Dennis Jacobs concluded that the definition violated the Equal Protection Clause. Its opinion joined an earlier decision by the First Circuit in Boston.
It is time to talk Prenups! These contracts entered into by the couple before the marriage should contemplate all aspects of property: what is marital and what should remain separate? Will one spouse receive maintenance (aka alimony)?
Don't let talking about Prenups detract from the romance of marriage – these are important devices you can use to protect your loved one and yourself from being entrenched in bitter litigation in the event of divorce. Allow yourself and your spouse the ability to exit the marriage with grace and dignity.
Contact me for a free consultation!
As you probably read this morning, last night Gov. Andrew Cuomo signed New York's gay marriage bill into law, which will permit gay weddings starting in 30 days. Most news articles have pointed out that New York now joins Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C., in allowing same-sex couples to wed. Unlike Massachusetts, which pioneered gay marriage in 2004, New York has no residency requirement for obtaining a marriage license, meaning the state could become a magnet for gay couples across the country.
It is important for all couples entering New York State for the purposes of getting married to understand that, should things go poorly – as is the case with 50% of marriages today – New York State does have a residency requirement for obtaining a divorce. This may be particularly tricky for couples in a same-sex marriage who are residents of a state that does not recognize their marriage and may not grant them a divorce.
New York residency requirements for divorce basically ask: "How are you related to New York State?" New York State only wants to be involved in your divorce if you have a "relationship" to the State where:
1. You and your spouse were married in New York State, and one of you resides in the State when the divorce action begins, and that person has lived in New York continuously for one year before the divorce action begins.
2. You and your spouse lived in New York State as Husband and Wife at any time during your marriage, and one of you currently resides in the State of New York and that person has lived in New York continuously for one year before the divorce action begins.
3. Either you or your spouse has been a resident of New York State for a continuous period of two years prior to the start of the action for divorce. (For example, if one spouse has resided continuously in another state or country, the spouse who has resided in New York for two years can seek the divorce in New York Courts.)
At a minimum, this means to obtain a New York divorce, one spouse may need to be a resident for at least a year prior to initiating a divorce.
New York law requires that your spouse be personally served with the paperwork initiating a divorce against him or her. This means, you must know where your spouse is in order to have your spouse handed the papers. In some cases, a spouse may be long-absent and after a diligent effort to find him or her, the Court will permit you to serve the papers by alternate means. In other words, you may seek special permission to serve your spouse through publishing a notice in the newspaper(s). This process generally carries additional expenses because you must pay the newspaper to publish your notice.
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