Wednesday, February 27, 2008

New York Trial Judge Will Allow Lesbian Couple to Divorce There

One trial court judge in New York has just decided that a lesbian couple married in Canada can indeed divorce in New York. See New York Divorce Law Blog: Lesbian Couple Married In Canada Can Divorce In New York and for a bit more detail on the case see GLBT Couples Law: NY Court Allows Same-Sex Divorce to Proceed. The judge in this case relied on a recent decision from the New York appellate division (intermediate-level appellate court) that same-sex marriages from other jurisdictions should be given effect in New York. (For information on that appellate case, see my recent post here.)

But the basic question, whether the New York courts can give a divorce to a same-sex couple married in another jurisdiction even though the couple could not have married in New York, and answered in the affirmative here by a trial judge, is quite similar to the question which was answered in the negative by the Rhode Island Supreme Court recently. (For background on the Rhode Island case, see my latest post on that here.) This recent New York case is only, at this point, the decision of a trial judge (beware: New York confusingly calls its lowest level trial courts "Supreme Courts" and they are actually not appellate courts - the intermediate level appellate courts are in the Appellate Division, and the highest court is called the Court of Appeals) and should therefore not have the same legal force (or "precedential value") in New York as the Rhode Island Supreme Court's decision does in Rhode Island. But certainly these two recent judicial decisions from New York already do indicate some disagreement between New York and Rhode Island.

We should expect more "votes" on these issues to come in from other states - and they may be expected to come from any states to which same-sex couples have decided to move. Stay tuned.

Excerpt from the GLBT Couples Law Blog:

New York, NY—In what is believed to be a groundbreaking ruling a New York City judge says that the ruling by the state's highest court that found there is no constitutional right for same-sex marriage does not apply to divorce.

The ruling by Supreme Court Justice Laura Drager allows a Manhattan woman to sue for divorce from her same-sex partner whom she married in Canada in 2004.

Drager found that out-of-state same-sex marriages are properly recognized under our law, and therefore Beth R. can proceed with her case against Donna M..

R is seeking the divorce and the awarding of joint custody of M's two children. Because the children are minors the women are identified only by letters.

M had sought to have the divorce petition quashed on the grounds that New York State does not recognize same-sex marriage.

In her ruling Drager said that New York does not recognize an out-of-state marriage in only two instances: if it is specifically named by the Legislature as prohibited or is abhorrent to New York public policy.

The written ruling noted that the Legislature has not specifically outlawed out-of-state same-sex marriages, and that the abhorrence exception is so narrow that it has been applied only to marriages involving polygamy or incest.

An attorney for M told the New York Post he will appeal.

The case will likely be decided by the New York Court of Appeals, the state's highest court in light of an appeal of a similar ruling this month by an appeals court in Rochester.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

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