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Same Sex Couple Figuring out The Attitude at Kitchen

Issues in Same-Sex Divorces 

Michael Fink Law, PLLC Oct. 17, 2022

Two years before the U.S. Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage across the country in 2015, Minnesota legalized these unions across the state.  

The advent of same-sex marriage is accompanied by the advent of same-sex divorce. As has always been the case for heterosexual couples, gay couples must petition the court to legally dissolve a legally-sanctioned marriage. However, the relatively recent legal status of same-sex marriage in Minnesota creates quite unique issues in gay divorce, unlike those facing most heterosexual couples.  

As a divorce attorney in Minnesota, it is my job to stay current with the changing landscape of family law. The issues that make same-sex divorce uniquely challenging are creating that landscape with every dissolution. If you are in a same-sex marriage in Minneapolis, Edina, Minnetonka, St. Paul, or St. Louis Park, Minnesota, and are considering or are going through a divorce, Michael Fink Law, PLLC can help you know what to expect.  

What Is the Status of Same-Sex Marriage in Minnesota? 

Same-sex marriage continues to be legal in Minnesota since the law went into effect in May 2013. Married gay couples enjoy all the same rights and responsibilities as all married couples. Among those rights is the ability to file for dissolution of the marriage. 

Minnesota is a no-fault state for divorce, so neither spouse needs to prove the other did something wrong, only that the marriage is irretrievably broken. Moreover, one spouse cannot keep the other from getting a divorce.  

What Are the Common Issues in Same-Sex Divorce? 

Issues with gay divorce arise primarily due to two key factors. First, since same-sex marriage only recently became legal, the length of the marriage is problematic. Second, both gay spouses may not share biology with their children. Judges render decisions based on traditional interpretations of the law. Since gay marriage is new, issues will need time to make it through the courts to catch up with it. Let me explain a few reasons why.  

The Length of the Marriage 

The length of the marriage is part of the calculus used in the division of marital assets and the awarding of alimony. Many gay couples have shared their lives, households, income, and debt for many years, but only the length of the marriage is currently considered. Since no same-sex marriage can be very long, someone usually ends up treated unfairly in divorce.  

For example, Spouse A and Spouse B have been together, living as a married couple, for 30 years. Spouse B owned the home before Spouse A moved in, and they never put Spouse A’s name on the deed. They married as soon as same-sex marriage became legal in Minnesota, but Spouse A’s claim on the value of the property in the division of assets is based only on the length of the marriage rather than the entire relationship.  

Likewise, spousal maintenance is based on one spouse’s need and the other spouse’s ability to pay in Minnesota. “Need” relates to the ability of the spouse to live in much the same way after divorce as they did during the marriage. If the length of the marriage, and not the length of time the two have lived together is what the court considers, one spouse can be left with far less if any financial support.  

Income, debts, and assets were shared by the same-sex couple before they were allowed to be legally wed in the same way married heterosexual couples share them throughout the marriage. However, with same-sex marriage in its infancy, courts typically recognize only what’s been shared during the actual marriage. That makes same-sex asset division and alimony inherently unfair in divorce.  

Biology of Children and Child Custody 

The biology and adoption of children also unfairly affect couples in same-sex divorce. If the child shared by a gay couple is the biological child of one spouse and the other spouse never formally adopted them, either in a second-party adoption prior to the marriage or adoption after the marriage, that spouse has no legal standing in child custody issues. In a heterosexual marriage, the father is presumed to be the biological father even if he is not. This presumption now applies to children in gay marriages but only if the child was born after the couple was married.  

The same applies to a child adopted by one spouse prior to the marriage and not formally adopted by the other spouse after they married.  

Tax Issues 

There are tax issues involved in every divorce, but the limited length of gay marriage can complicate them even further. If only one spouse’s name is on the property deed, but both have been paying the mortgage during the marriage, it is considered marital property. If the court deems it to be community property in a same-sex divorce, the spouse named on the deed will have to convey one-half of the property’s value to the other spouse and that spouse will have to pay federal tax on that value. The person whose name was originally on the deed will not be required to pay federal tax.  

Speak With an Understanding Attorney 

Same-sex divorce is a new frontier for family law attorneys and for the legal system. You should speak with an attorney who has represented gay clients in divorce and has the benefit of presenting arguments intended to give credit to the longevity of the relationship, not just the marriage.  

If you are facing same-sex divorce, I am ready to use my experience to help. Call Michael Fink Law, PLLC in Minneapolis, Minnesota, today to schedule a consultation.