The couple, identified as Donna M. and Beth R., married in Toronto in 2004. Donna gave birth to two daughters conceived by artificial insemination during their relationship, one before and one after the wedding.

Supreme Court Justice Laura Drager granted Beth's petition to sue for divorce and for custody of the children in New York, the New York Post reported. The judge, sitting in Manhattan, ruled that the New York Legislature has not specifically made same-sex marriage illegal and found that the law's ban on recognizing "abhorrent" marriages does not apply to same-sex ones.

Raul Felder, one of the city's best-known divorce lawyers, said that he plans to appeal the ruling on behalf of Donna M.

"The judge's decision was scholarly and well thought out, but it sets aside 200 years of decisional and statutory law in New York," Felder said. "She wants to change the law. That's something for the Legislature to do."