Same Sex Couples Finding it Difficult to Divorce

Same sex couples are finding it increasingly difficult to get divorced.

At the time of this writing, only 6 states and the District of Columbia allow gay marriage. None of these states have a residency requirement attached to their laws either, meaning a same sex couple doesn’t have to live in the state to be married there. Many couples go to one of these states for the sole purpose of getting married, then return to their home state.

Same Sex Divorce

But this becomes problematic when the marriage goes bad and couples decide they want a divorce. States that ban gay marriage usually do not have laws in place that deal with the divorce of same sex couples. So when a gay couple (married in another state) files for divorce in their home state (where gay marriage is not legal), things get complicated.

Additionally, same sex couples usually can’t just go to the state in which they got married to get their divorce granted because of residency requirements.

Some argue that it’s not a big deal, but it really is, considering all the elements that need to be dealt with in a divorce proceeding, such as:

  • Property Division
  • Spousal Maintenance
  • Child Custody & Child Support

Where does Minnesota Stand?

“A 1997 Minnesota law prohibits both same sex marriages within the state as well as same sex marriages entered into in other states,” says MN Divorce Lawyer, Katie Lammers. “In other words, if a gay couple gets married in another state, the marriage will not be recognized under MN law. The 1997 legislature not only banned gay marriage but pre empted the grandfathering in of out-of-state same sex marriages.  Thus, if a same sex couple marries elsewhere but is divorcing in Minnesota, their ‘decoupling’ isn’t governed by traditional divorce law. The property issues are dealt with in civil court and the custody issues are dealt with in family court.  This may create additional uncertainty and difficulty in the family breaking up since the traditional divorce laws, especially regarding spousal maintenance and marital property do not apply.”

Related Sources:

CNN.com

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 Same Sex Couples Finding it Difficult to Divorce
Katie is a partner at Heimerl & Lammers, and heads the family law group at the firm. She represents clients in all areas of family law, from divorce mediations, to child custody disputes. Katie received her law degree from Hamline University. Katie lives in south Minneapolis with her husband and son. In her free time, she loves to cook and travel.