In the summer of 2015, the United States Supreme Court handed down the landmark decision in Obergefell v. Hodges. This case provided that all states would now be required to issue marriage licenses to same-sex couples seeking to tie the knot, just the same as they have been issuing licenses to opposite-sex couples. Minnesota passed similar legislation several years earlier. For all same-sex marriages performed on or after August 1, 2013, same sex couples have the same rights to marry, divorce, and obtain benefits just like a heterosexual couple. Along with same-sex marriage, however, comes same-sex divorce.
In general, same-sex divorce functions the same way as a divorce between a heterosexual couple. The spouses are entitled to an equitable division of marital property, request spousal maintenance, and ask for a division of marital debt. Unfortunately, there are some complications that often come along with these same-sex divorces. The main complication when it comes to these issues is that many same-sex couples have been residing together, pooling resources, and planning together for the future for many more years than they have actually been married. Spousal maintenance requests depend in part on the length of the parties’ marriage, not the length of the parties’ cohabitation. In addition, although the parties are entitled to an equitable division of marital property, marital property is often defined as the assets accumulated during the marriage. If the parties have been residing together for years before the marriage ever occurred, this can greatly complicate asset division, as many of their assets will not be marital assets. One way to address these potential issues is to enter into a pre-nuptial agreement. The agreement can set out what the parties agree will be subject to division in the event of a divorce and also can make an agreement regarding the availability of spousal maintenance.
Child custody can also potentially be complicated. Minnesota does recognize adoptions done by same-sex couples. If both parties are legally the child’s parent, either by virtue of biology or adopting the child, the court will treat their custody and child support issues the exact same way as in a custody dispute between a heterosexual couple. However, if one of the parents never completed an adoption, this can present challenges for that parent in trying to obtain custody or visitation in the event of a divorce.
We have extensive experience in helping our clients with all types of divorces. Call us today and we can examine the unique issues facing you and your family.