Posted on
A recent article, “For gay couples, divorce comes with extra costs” describes the difficulties some people have faced in getting a same-sex divorce. Some of the difficulties identified have been addressed in Minnesota’s recent same-sex civil marriage legislation and others are not unique to same-sex couples. Here are the problems identified in that article and my thoughts. Problem: Courts haven’t figured out how to handle these new same-sex marriage divorce cases. The recent legislation in Minnesota addresses this issue by making it clear that all existing laws dealing with “marriage” now apply to the new same-sex marriages. This includes all laws concerning divorce which have been in effect for decades. The courts in Minnesota will apply the same divorce rules and procedures for divorcing same-sex marriages. Problem: Location, location, location. Many couples travelled to a state recognizing same-sex marriages in order to be married but now reside elsewhere, in a state where same-sex marriages are not legal. States that don’t recognize same-sex marriages won’t grant a divorce to a couple whose marriage is viewed as unlawful. Can the couple return to the state where they married to get divorced? Most states have a residency requirement, typically residing for six months in that state, before a divorce proceeding may be initiated in that state. The Minnesota legislation addresses this problem. It allows a divorce action in Minnesota even if neither party resides in Minnesota if the civil marriage was performed in Minnesota and neither party resides in a state which recognizes same-sex marriage and allows divorce actions for such marriages. So, if a same-sex couple married in Minnesota and later moved to Wisconsin where same-sex marriages are not legal, they can be divorced in Minnesota. Problem: Time together: Reality vs. legality. Many same-sex couples lived together for years before being able to legally marry. During the years or decades before marriage, they acquired assets, bought homes together, shared expenses, acquired debt, and commingled their finances. Yet, under traditional divorce law, it is only assets and debts acquired during the marriage that are considered. This is also a problem for straight couples who live together for years before marrying or who never marry. When their relationships end and they need to divide their assets and debts, divorce laws don’t help them. Unless they entered into a prenuptial agreement addressing how these assets and debts acquired before the marriage would be divided, or if never married – a contract addressing these issues, they would have a difficult time finding an efficient legal remedy for their situation. Litigating these issues in court will be expensive. These issues can be addressed in the collaborative process, which is not limited to divorces, and where people with unique problems and issues not adequately addressed in traditional law forums can reach agreements. Once agreements have been reached, these agreements can be filed with the court and made into enforceable court orders.
Posted on
Prenuptial agreements – “What’s Love Got to Do With It?” For people planning their wedding, the thought of entering into a prenuptial agreement may seem unromantic and pessimistic. It addresses what would happen if your marriage doesn’t work out. But a well thought out prenuptial agreement can give you and your spouse control over the terms of your divorce, if that should happen, helping you avoid future litigation, and it also can be a process for discovering your expectations and views about financial issues. In Minnesota, to enter into a valid and enforceable prenuptial agreement, you must sign a written agreement before two witnesses and a notary public before you are married. The agreement must include a full disclosure of each person’s income and property and a statement that each has had an opportunity to consult with legal counsel of their choice before signing the agreement. The better practice is to enter into such an agreement well before the wedding date so each of you has an opportunity to consult with their own attorney. The issues which are most often addressed in prenuptial agreements are deciding how property and debts existing at the time of marriage and acquired during the marriage will be divided in the event of divorce. Some agreements address whether there will be spousal support (alimony) awarded in a divorce and how much will be awarded. These agreements are generally enforced by Minnesota courts unless there are extreme inequities resulting from enforcement at the time of the divorce. Agreements on child custody and child support are not enforceable as part of prenuptial agreements in Minnesota. The court in a divorce examines the best interests of the children at the time of the divorce in deciding who should have custody, what the parenting time should be, and how much child support should be paid. Couples who have acquired substantial assets before the marriage, who have been married before and have children, or who want to preserve their estate plans for their adult children from previous marriages, enter into prenuptial agreements to ensure that their goals and financial expectations are followed in the event of a divorce. These are not the only couples who may need prenuptial agreements. For example, with the recent legalization of same-sex marriages in Minnesota, some-same sex couples contemplating marriage may need to consult with legal counsel to learn the differences in how their income and property will be treated once married under Minnesota law and whether a prenuptial agreement may be appropriate. Professionals are available for consultations on these issues. The collaborative process gives couples (not the court) the power to shape their future financial destiny. The collaborative process also ensures that the needs and interests of each person are addressed, with full disclosure of financial information, advocacy for each person and neutral professional financial and other advice. Making sure each of you have the information you need is what love has to do with it.