In order to have standing to proceed with a marriage dissolution in Minnesota, the petitioning party must have resided (or been domiciled) in Minnesota for at least 180 days.  When gay marriage was legalized in Minnesota, however, a new exception to that rule emerged.  The reason for the exception is the fact that there are jurisdictions elsewhere that do not recognize same sex marriages.

If the marriage was performed in Minnesota, and both spouses reside where gay marriage is not recognized, either party can proceed with the divorce in Minnesota.  The case is, of course, governed by Minnesota law, and not the law where the petitioning spouse resides.

The Mayo Clinic has adopted a policy requiring gay employees to get married to stay eligible for health insurance.  The Clinic has offered same sex benefits for years, and when gay marriage was not legal, it stood to reason that the employee would not have to be married.  Now, with gay marriage legal, the requirement places gay employees on par with other employees who must be married to qualify for such benefits.  It provides a different twist to the idea of marriage equality, which usually pertains to rights, rather than obligations.

Since there remain states which do not recognize gay marriage, including two states (Florida and Arizona) where Mayo has employees, there may be an impetus for some gay employees to relocate to a non-marriage-equality state to avoid the marriage requirement.

It is expected that other large companies will follow suit and establish similar policies.

The latest development in same sex divorce in Minnesota happened in probate court.  On August 1, a Hennepin County District Court judge upheld a probate court referee’s ruling that a surviving partner of a same-sex marriage was entitled to inherit the decedent partner’s assets.  The couple was married legally in California in 2008, moved to Minnesota in 2010, and the decedent passed away in 2011.

The court ruling depended on the Minnesota Uniform Probate Code, which does not prohibit inheritance by a same-sex partner, and the Minnesota Defense of Marriage Act, which recognizes same-sex marriages performed in other states.  The ruling also depended upon the disclaimer by the decedent’s parents of the decedent’s assets.  That is to say, had the decedent’s parents not disclaimed the assets, the assets would have gone to them because the decedent had no written will.

The Minnesota Defense of Marriage Act renders void in Minnesota any same-sex marriage solemnized in another state.  However, the court ruled that the legislative intent was to limit contractual rights, but not statutory rights.  The ruling lends support to the prospect that Minnesota courts can dissolve same-sex marriages, to the extent that doing so does not involve contractual rights.  Child custody, child support, spousal maintenance, marital property and non-marital property are statutory rights, not contractual rights.  So the probate court ruling suggests that these issues would be subject to the jurisdiction of the family court in a marriage dissolution.

Presumably, there will be cases in the near future that will continue to give shape to the developing landscape of same-sex marriage and divorce.

Please note that the content in this blog post is now out-of-date but remains for archival purposes.

As a followup to my November blog post about gay divorce, it is interesting to note Minn. Stat. Section 517.03, which dates back to 1997, and reads as follows (note the italicized parts):

(a) The following marriages are prohibited:

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.