July 24, 2021 marks the 10th anniversary of the date that the New York Marriage Equality Act, which legalized same-sex marriage in New York state, took effect. Over the last decade, as same-sex marriage has become routine in New York, unfortunately, so has same-sex divorce. In most respects, New York law treats same-sex divorces the same as opposite-sex divorces, however there are a few key issues about which courts should be aware when handling same-sex divorces. One of those differences concerns how courts should treat a pre-marital relationship, particularly where that pre-marital relationship began prior to the legalization of same-sex marriage. In other words, where a couple began their relationship prior to the legalization of same-sex marriage in New York state, should that pre-martial relationship carry more weight in the determination of certain financial issues, namely the equitable distribution of marital assets and the determination of the amount and duration of spousal maintenance? Simply put, can—and should—a court treat the pre-marital relationship of a same-sex couple that predates the legalization of same-sex marriage as a de facto marital relationship?

Although New York courts have yet to opine specifically on this issue, we can look to some recent New York decisions that touch on the matter, as well as decisions from other jurisdictions facing the same issues, to highlight the facts that New York courts should contemplate when adjudicating the relevance of a pre-marital relationship to a same-sex divorce.