NEW YORK: Is Rosie O’Donnell getting divorced from Kelli Carpenter? If so, what are the legal issues?

Rosie O’Donnell and Kelli Carpenter were one of the most famous married gay couples. But as of Tuesday, they are couples no more.” That, if true, raises some legal questions.rosie Such as:

CAN THEY GET A DIVORCE IN NEW YORK?

New York, unlike Massachusetts and a number of other states, does not allow same-sex marriages. But do they allow same sex divorces? Probably. Even though the state of New York disallows gays and lesbians to marry, New York does give full faith and credit to gay marriages that were legal in the states in which they were solemnized. So, while Rosie and Kelli got married in California, they would not have to go back to California and establish residency for at least a year in order to get a divorce. They can legally divorce here in the State of New York. (Normally, one has to be a resident of a state anywhere from 6 months to 2 years in some states in order to get divorced in that state.) Go here for residency requirements in New York: Residency Requirements. (There is some question whether the marriage in California is valid given the prop 8 situation that occurred in 2008)

WHAT ABOUT THE KIDS?

Rosie and Kelli have a bunch of kids together. Three of the children are adopted and one of the children is the biological child of Kelli’s. What rights to the parties have? Well, if there is a custody battle, the court is going to either award joint custody, or sole custody. In a joint custody scenario, Kelli and Rosie are mature adults who don’t use the kids as weapons against each other and they share in the rearing of their children. They don’t disagree about much as far as raising the kids and the judge is pretty secure that there won’t be protracted family battles about matters involving the children’s legal care and welfare. Most divorcing couples in New York do not get joint custody. Because in most cases, it simply does not work. People love as hard as they hate and when people get divorced, their hate for each other usually usurps their love for the kids: in the sense that, they will sacrifice the child(ren) having the presence of both parents in their lives just so they can punish the other parent. Some even alienate (parental alienation) the child(ren) from the other parent – which leads to even bigger problems and a possible loss of custody. So for that reason the courts are wary about awarding joint custody, unless it is demonstrated that the two parents can truly handle it and their split is not acrimonious, but in fact, is more on the amicable side. So unless Rosie and Kelli are of the school of parents who can handle themselves in a mature fashion post-split, one of those girls will be losing custody.

CAN THE COURT AWARD SPLIT CUSTODY?

Will the courts consider splitting custody and giving Kelli custody of her biological child and giving Rosie the other 3 children she adopted? The court might. It could be found that this is in the best interest of the child(ren) to do so. But for the most part, courts shy away from splitting children who are used to growing up together. There are circumstances where split custody is deemed to be best for the children, as we detailed here: Split Custody. But in Rosie and Kelli’s case, chances are, one of them will get custody of the children – all four children – and the other will have liberal visitation. My money is on Kelli getting custody and Rosie paying child support and getting liberal visitation.

HOW WILL ASSETS BE DISTRIBUTED?

What about assets and equitable distribution? Well, New York is an equitable distribution state and so the courts will look to what is fair. A lot of her assets were earned prior to the marriage when Rosie was doing the Rosie O’Donnell show here in New York years ago. So those assets are off the table and Kelli would not be entitled to any distribution from anything that was not earned during the marriage. However, any real estate purchased after marriage, boats, stocks, bonds, other securities & investments, businesses (they owned a gay cruise line, didn’t they?) etc, will be subject to equitable distribution and Kelli would be entitled to an equitable split. It should be noted that an equitable split does not necessarily mean a 50/50 split. It could mean that, but not necessarily. So Kelli’s is subject to the judge’s discretion after a trial on the facts – unless of course, they had a prenuptial agreement.

Without a prenup, Kelli may even be entitled to life long alimony from Rosie. That kind of reality may very well turn Rosie and other same-sex couples off from marriage once they realize that it’s a lot more than just being able to call someone your spouse. When the divorce comes, they are going to have to put their money where their mouth is. And even in heterosexual marriages, this is often a very tough pill to swallow.

by New York Divorce Attorney: www.mynewyorkdivorceattorney.com

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