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.
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.
Now that Minnesota has passed the Same-Sex Marriage Bill, there is much to figure out with regard to how laws will apply to same-sex couples and how laws will need to be amended to include same-sex couples. Now that same-sex couples can marry, they will also be subject to the laws for dissolving the marriage. The costs to the couples for going through the process might change because there will be a legal structure in place that now answers questions about division of assets and liabilities, as well as custody and parenting issue. As noted in the article in CNN Money about the cost of same-sex divorce, the cost for a “divorce” in states that have not recognized same-sex marriage has proven to be higher than states where same-sex marriage is recognized. The article notes that, “For an out-of-court settlement in states where same-sex marriage isn’t recognized, a same-sex divorce typically costs around $20,000, versus $10,000 for an opposite-sex couple, said Randall Kessler, a partner at Kessler & Solomiany Family Law Attorneys in Atlanta.” When children are involved, it further states that, “Same-sex couples who negotiate property division on their own but bring the custody issue to court are usually looking at $40,000, compared to $20,000 for opposite-sex couples, Kessler said. And a long, drawn-out court battle over custody could lead costs to jump to $100,000 or more for a same-sex couple, twice what it costs for an opposite-sex couple.” In my Collaborative practice, I have previously worked with same-sex couples dissolving their relationship with children. We did have to navigate the legal system with some creativity to address the issues of property division and parenting issues because they did not fit into the opposite-sex dissolution system. But the Collaborative process allowed them to be treated as a family system and reach a settlement that worked for everyone involved and it was less expensive than if it had been done through traditional legal system. Now that we have legalized same-sex marriage in Minnesota, we will have a system in place that will provide answers to the legal questions that arise in same-sex divorce. And the Collaborative Process will continue to be a responsive process to help manage costs, keep the decision making power within the family, and enable healthy transitions.