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Understanding Same-Sex Divorces

The Law Office of Glen A. Norton April 13, 2022

Any divorce, no matter the circumstances, is difficult. It involves the dissolution of a relationship and all that entails. Even though same-sex couples have enjoyed marriage equality for a relatively short amount of time, divorce equality is still playing catch up. From splitting assets to child custody rights, the details of a divorce that are often clear in a heterosexual marriage can be a little more cloudy for same-sex couples.

Mixed-Race Same Sex Couple Arguing in the Kitchen

Those in a same-sex marriage face a unique set of legal challenges throughout all phases of the relationship, especially during a divorce. The Law Office of Glen A. Norton can help you navigate the unique challenges presented by a same-sex divorce. With over 30 years of experience in family law matters, The Law Office of Glen A. Norton can help clients navigate the complexities of a divorce every step of the way. He proudly serves clients in Minnetonka, Plymouth, Eden Prairie, Wayzata, Maple Grove, and Hennepin County, Minnesota.

Same-Sex Marriage in Minnesota

As of August 1, 2013, same-sex marriage is permitted in Minnesota. Under state law, same-sex married couples have the same rights and responsibilities as heterosexual married couples. Marriage in Minnesota is now defined as a civil contract between two individuals regardless of gender.

Same-Sex Divorce Process

The process for a divorce between same-sex couples mirrors that of opposite-sex couples. The same filing requirements apply to couples preparing to marry regardless of their sexual orientation. For example, one of the soon-to-be spouses must reside in Minnesota for at least 180 days before filing. Likewise, couples that were married in another state that recognizes same-sex marriages can divorce as long as they meet Minnesota’s minimum residency requirement.

Division of Assets

Many same-sex couples lived like married couples for years before the passage of the marriage equality law. However, in the case of a divorce and dividing of assets, no matter how long the same-sex couple has lived as a married couple, state law only recognizes joint property extending back to 2013. 

Since Minnesota is an equitable distribution state, assets are divided equitably (or fairly) between spouses. This classification allows some flexibility in same-sex property division but using mediation for asset division is another route same-sex couples may wish to explore. Mediation often allows for creative solutions that are not pursued in court.

Custody and Visitation

Minnesota allows same-sex couples to petition for adoption. Couples going through a divorce, regardless of their sexual orientation all face the same custody and visitation concerns. However, second-parent adoption arrangements, common for same-sex couples prior to 2013, may complicate custody and visitation rights of adopted children.

Potential Issues in Same-Sex Divorce

Partners Were Together Before the

State Legalized Same-Sex Marriage

Like many heterosexual divorces, the length of the marriage can affect many aspects of divorce, including alimony, child custody, and division of assets. Despite same-sex marriages only being considered legal as of 2013, judges will consider the length of the entire relationship when rendering decisions, not just the time the couple was legally married.

The Non-Biological Parent Never Adopted

Their Partner’s Biological Child

In same-sex divorces, the child custody process is the same as in a heterosexual divorce. However, when one person in a same-sex marriage does not have legal parental rights, there are some special considerations to take into account. In these cases, it is possible for a non-legal guardian who is not biologically related to the child to get custody.

Determining Alimony Can Become Problematic

Alimony, also referred to as spousal support, can also be an issue in a same-sex divorce if the couple was together for many years before the laws legally recognized their marriage. The court will generally award alimony when one spouse needs time to become financially stable and the other spouse is in the position to assist. Several factors go into deciding the amount and length of time the alimony will be paid. Generally, the longer the marriage, the more likely a judge will award spousal support to a lower-earning or non-earning spouse. 

Tax Issues

Since same-sex marriages are recognized by the federal government, in states where same-sex marriage is legal, couples married in those states can file their federal tax return as a married couple. Unfortunately, if a same-sex married couple decides to live in a state that doesn’t recognize same-sex marriage, for state tax purposes they will be treated as single, but they will be listed as married on their federal tax returns.

How an Experienced Minnetonka

Family Law Attorney Can Help

Many same-sex couples still face the same challenges in divorce as opposite-sex couples. No matter the couple, divorce is an emotional and highly stressful situation. Whether you are thinking about divorce or the process has begun, contact The Law Office of Glen A. Norton today to schedule a free case evaluation. He proudly serves clients in Minnetonka, Plymouth, Eden Prairie, Wayzata, Maple Grove, and Hennepin County, Minnesota.