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Honeymoon Period Ending for NYS Same Sex Couples?


Gay Marriage Marks 3-Year Anniversary Thursday, “4-Year Itch” Around the Corner

July 22, 2014 – Albany, N.Y. – With this Thursday marking the third anniversary of when the Marriage Equality Act took effect, ushering in gay marriage in New York State, many of the people who married under the law are heading toward a period that has traditionally been trying for couples: their fourth year. Despite the popularity of the “seven-year itch,” social scientists have long recognized that divorces tend to peak in the fourth year of marriage. And any of New York State’s new same-sex spouses who are heading for divorce may confront certain legal issues that opposite-sex partners usually do not have to consider when ending their union.

Out of the married couples in New York State that do not make it to their tin (10-year) anniversary, more each year get divorced during their fourth or fifth year of marriage than any other year. During the 16-year period ending in 2012 in New York State, annual divorces within the pre-10-year-anniversary period peaked seven times during the fourth year of marriage (i.e., 1997, 2001, 2005, 2009, 2010, 2011, 2012) and five times during the fifth year of marriage (i.e., 1998, 1999, 2002, 2006, 2008), according to a Tully Rinckey PLLC analysis of New York State Department of Health data. See Table 1.


In 2012, the first year for which New York State gay marriage data is available, 2,796 gay marriages occurred statewide, excluding New York City, with 1,792 of them involving female/female couples and 1,004 involving male/male couples, according to Health Department data. See Table 2.

Table 2

Top 10 NYS Counties (excluding NYC) with Gay Marriages in 2012


Gay Marriages

  1. Niagara


  1. Erie


  1. Suffolk


  1. Monroe


  1. Nassau


  1. Westchester


  1. Onondaga


  1. Chautauqua


  1. Albany


  1. Tompkins


Based on data from NYS Department of Health Vital Statistics, 2012, Table 47a.

According to Tully Rinckey PLLC Partner Mario D. Cometti, the unique considerations that same-sex couples need to take into account that are usually less relevant to opposite sex couples include the following:

1)     Location Matters: By getting married in a state that recognizes gay marriage, such as New York, and then moving to a state that does not recognize such unions, same-sex couples could lose some – if not all – of the  benefits arising from the marriage. Three states prohibit same-sex marriages by statute and 28 prohibit such unions by their constitution. A move to any of these states could make getting a divorce difficult, because they will not dissolve a union they do not recognize as legal.

2)     Determination of alimony/maintenance:  In New York, awards of alimony, or spousal maintenance, are based on several factors, including the length of marriage. It is not at all unusual for same-sex couples to have been financially dependent for years, if not decades, before getting married. The time spent in a relationship before the marriage may not be recognized or may be more difficult to establish by a court in New York. This principle also applies to spouses who previously entered a domestic partnership in New York.

3)     Calculation of retirement benefits: The principle for alimony/maintenance determinations likewise applies to retirement benefits. In New York State, pension plans, 401(k)s and other retirement vehicles are split in accordance with the length of the marriage during any divorce proceeding. There is an open issue as to when the right to even make a claim against a spouse’s retirement benefits begins in New York. It arguably can be calculated from when New York first recognized same sex marriages (i.e., July 24, 2011). Or, it could be limited to the date in which the Supreme Court last year struck down parts of the Defense of Marriage Act (DOMA) in its landmark decision of U,S. v Windsor (i.e., July 26, 2013). The issue has not been resolved and continues to be fought in courts.

4)     State of origin of marriage: If someone moved to New York State, but he or she had gotten married in another state, how alimony and property is divided may be greatly affected. For example, if someone entered into a same-sex civil union and then married in Connecticut, the recognized length of the marriage may be increased. In other states, a civil union may be of no consequence.

“Getting a divorce is a complex process, and it can be especially so for same-sex couples. Amid the changes in law and historic court decisions, same-sex spouses in New York State entered uncharted territory when they got married, and they will enter such territory again when they get a divorce. They definitely need an attorney to guide them through the process,” said Tully Rinckey PLLC Partner Mario D. Cometti, who practices family and matrimonial law.

To speak to Mario D. Cometti, or for more information, please contact James Schlett at (518) 218-7100 or at


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