Now that gay marriage has been legalized in some states, the time has come to tackle the issue of gay divorces. There is some debate in the legal community about how (or even whether) same-sex divorces should be handled in Minnesota. Minnesota law provides that a person who has resided in Minnesota for 180 days is entitled to dissolution of their marriage. Since my practice involves substantial interstate and international cases, I encounter cases of married couples whose marriages, or the solemnization of their marriages, would not be recognized under Minnesota law, but whose divorces fall under the jurisdiction of the Minnesota courts based upon residency. Gay marriages presumably can be (should be…must be…) handled similarly.
The problem with not rendering divorces of valid same sex marriages is two-fold. First, the same potential constitutional issues that loom over prohibiting gay marriage, pertaining to the unequal treatment of same-sex couples versus opposite-sex couples, loom for refraining from proceeding with gay divorces. Second, the enforcement of bigamy laws is complicated greatly by refusing to provide a divorce to a legally married couple. (As an example, if a Minnesota resident is validly same-sex-married, separated from his or her partner, unable to get a divorce, and prepared to marry someone of the opposite sex, they may or may not be in the process of committing bigamy.)
Other options for gay couples include prenuptial contracts and bifurcated court actions. Prenuptial contracts required the couple’s attention BEFORE solemnizing their union, but could define the parties’ respective rights in the event of a termination of the relationship. Bifurcation court actions would result if the couple has children (issues pertaining to whom must necessarily be addressed in family court) and the parties resort to civil courts for financial and property issues.
My expectation is that eventually the distinctions between gay and straight divorces will become outmoded, and it is a matter of when (not if) same-sex couples will come to handle their divorces in the same manner as opposite-sex couples.