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As Same-Sex Marriage Is Legalized in Minnesota, Are Divorces Far Behind?

Minnesota same-sex couples celebrated on August 1 when same-sex marriage became legal. However, one couple was the first same-sex couple in line to get divorced. Dawn Tuckner and her spouse married in Canada in 2004 and separated in 2009. They could not divorce in Minnesota because the state did not recognize their marriage. Canada’s one-year residency requirement excluded them from divorcing there. Therefore, the couple has been in legal limbo for the last four years. While it is unlikely that the courts will treat the Minnesota same-sex couple any differently from heterosexual couples, there is no case law to guide the courts through legal grey areas. However, insights are available from states where same-sex divorce already exists.

When same-sex couples live together for years before marrying, custody becomes a concern in divorces if the children have not been legally adopted by the non-biological parent. Some think that the custody process is skewed to favor mothers – but what happens in situations where there are two mothers? Dawn Tuckner, who is currently engaged in a custody battle over her son, may be making legal history here as well.

Another problem is that, under Minnesota divorce law, marital property – everything the couple acquired while they were married – is divided according to what is “just and equitable.” However, non-marital property – what each spouse acquired separately, usually before they married – belongs to each spouse as an individual, independent of the marriage. What happens to all the property the couple acquired while living together? What about their debts?

Along with Minnesota regulations, the Supreme Court overturn of DOMA means that federal regulations governing the division of assets now apply. Same-sex couples need to review their estate plans, prenuptial agreements and federal tax filings.

Access to same-sex divorce has varied widely from state to state. However, the general rule is that it is often more complex than the process faced by heterosexual couples. To protect your rights in a same-sex divorce, consult Hess & Jendro Law Office, P.A. Our attorneys have in-depth experience handling family law matters.