While NY does not allow same sex couples to wed within the state NY does recognize marriages that are performed out of state as long as there is no NY law prohibiting the marriage and it is not against public policy. Since New York Courts recognize out of stae same sex marriages the courts will grant divorces to those couples residing in New York. The courts have determined that they have subject matter jurisdiction to grant divorces where parties were married in a state that permitted same sex marriag and the parties meet the New York residency requirements. Only in February 2008 was this first handed down in Beth R. vs. Donna M. In this case the defendant argued that the divorce action should be dismissed because New York did not recognize gay marriages and therefore could not grant a divorce. The court denied the motion to dismiss on grounds that New York recognizes marriages that are legal where contracted unless the marriage is "prohibited by a positive law of this state" or is against public policy, which has been narrowly construed as polygamy or incest. The court further decided visitation and custody issues ruling that even though one spouse was not a biological parent to the children, it was in the children's best interest that custody visitation and support be considered for both of the parties.
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