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Gonzalez v. Green - 2006 NY Slip Op 26523, 14 Misc. 3d 641, 831 N.Y.S.2d 856 (Sup. Ct.)

Rule:

An agreement executed as a "separation agreement" upon dissolution of the relationship between same sex domestic partners who cohabited and took part in a marriage ceremony to each other in Massachusetts is valid and enforceable, notwithstanding that the parties' marriage was declared null and void under the laws of both New York and Massachusetts.

Facts:

A same-sex couple, whose primary residence was New York, took part in a marriage ceremony to each other in Massachusetts. They returned to New York. Their relationship deteriorated and they separated. The wealthy, older man's attorney drafted a "separation agreement" of which both parties executed in the same manner that a deed was normally executed. The agreement, which contained mutual releases, was fully performed upon its execution by the parties. The younger man filed an "Action For A Divorce" against defendant wealthy man, who filed a motion for summary judgment to dismiss the action. The wealthy man also sought a declaration that, since the parties were never married, the separation agreement was void ab initio and all property transferred by the wealthy man to the younger man had to be returned. The younger man cross-moved for summary judgment dismissing the counterclaims.

Issue:

Was a "separation agreement" entered into upon dissolution of the relationship between same sex domestic partners who cohabited and took part in a marriage ceremony to each other in Massachusetts valid and enforceable? 

Answer:

Yes.

Conclusion:

The court dismissed the "Action For A Divorce" for failure to state a cause of action, holding that the parties' marriage was void under the laws of either New York or Massachusetts. However, the agreement was not void ab initio as against public policy merely because the parties were a same sex couple. The younger man delivered tangible property of more than sufficient value to the wealthy man in consideration of his entering into the agreement. Nor was the agreement voidable under the doctrine of mutual mistake. The law of New York recognized the validity of the cohabiting parties' right to settle their affairs by agreement.

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