May 22, 2013

Same-Sex Divorce for Couples Married in Other States

Image courtesy of arztsamui/

Image courtesy of arztsamui/

While much of the focus of the new law legalizing same-sex marriage in Minnesota is focused on the upcoming weddings, the new law also paves the way for same-sex couples to legally divorce once the law goes into effect on August 1, 2013. This has a significant impact on Minnesota same-sex couples who were legally married in other states or countries and have since split up.

Minnesota’s current law declared that same-sex marriages from other states were void and no rights were enforceable in Minnesota. For example, suppose you have Bill and Bob, a gay couple who legally married in Vermont in 2001, and then moved to Minnesota. Bill and Bob adopted a son, and Bob decided to stay at home to care for their son while Bill worked.  After 12 years of marriage, they decide to end the marriage. Minnesota law treated this couple as if they had never been married, and they would not have been able to bring a proceeding for divorce. They could have brought custody and child support issues in a legal proceeding, but the law would have treated them like unmarried parents and would not have been able to handle property division or spousal maintenance.

But now, the new law signed by Governor Dayton allows Minnesota family courts to recognize marriages performed in other states or countries.  So same-sex couples will now have the ability to pursue a legal divorce just like an opposite-sex couple.  Depending on the facts, Bob might have a claim for spousal maintenance, and the couple’s marital property accumulated during the 11 years of marriage would be subject to an equitable division by the family court.

One thing the new Minnesota law cannot fix is the tax implications on property divisions in same-sex divorce. Because of the federal Defense of Marriage Act (“DOMA”), the federal government does not recognize same-sex marriage for tax purposes. And that means same-sex couples who are dividing assets in a divorce, such as retirement accounts, are treated differently by the IRS than opposite-sex couples.  All of that could change in the next couple months when the U.S. Supreme Court rules on the constitutionality of DOMA.

With the new law and the impending decision by the Supreme Court,  family lawyers are facing new territory.  This makes the collaborative divorce process an attractive option for same-sex couples. The collaborative divorce process allows for a couple to honor their relationship and craft customized solutions to handle the changes to the law. Bill and Bob can have a respectful divorce, work together as effective co-parents, and remarry when they find new love in the future.

Kellie McConahay
Attorney, McConahay Law Firm PC

Kellie McConahay is a collaborative attorney and mediator. After her own divorce, Kellie was inspired to create a law firm focused exclusively on helping families stay out of court. She experienced firsthand the pain, anger and fear at the beginning of a divorce, but the collaborative process brought healing and, eventually, joy to her family. Kellie knows the process chosen in a divorce, particularly with children, impacts every member of the family for years to come. You can learn more at

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