How the newness of same-sex marriage can complicate a divorce

Just a decade ago, Missouri didn’t recognize same-sex marriage. In fact, the state Supreme Court heard a case in 2014 about whether the lower courts would need to grant a same-sex divorce for a couple that had married in another state.

A federal Supreme Court ruling created sweeping changes that require all states to recognize same-sex unions shortly after Minnesota moved to change its laws. With those newly permitted marriages came the possibility for divorce, something that few really considered ahead of time.

Those eager to walk down the aisle with their loved one, possibly after decades of sharing a life together, likely didn’t think about the possibility of divorce any more than other couples imagine the end of their relationship while planning a wedding. Unfortunately, couples in long-term same-sex marriages may have unique concerns that can impact what happens in their divorce.

It can be hard to establish separate and marital property

Many same-sex couples who shared their life together prior to the landmark Supreme Court ruling in Obergefell v. Hodges had to do so without the formal protection of marriage. Although some states recognized marriages and others recognized civil unions, many couples simply went without formalizing their relationship in the eyes of the law.

They still lived together and shared their finances and other resources. That long-term commitment and cohabitation could be a complicating factor when a same-sex marriage leads to divorce. For example, you may have supported your spouse before you ever got married by working and paying all of the bills so that they could go to graduate school. There may have been substantial commingling of your resources, and you may have shared assets as though you were already married.

It can be difficult to determine what is reasonably marital property that both spouses can claim in the divorce and what is separate property. Until you make such determinations, securing an equitable split of your assets will be nearly impossible.

Different divorces require different approaches

The reason for your divorce, the length of your marriage and the assets you share with your spouse are all going to have a major influence on the best way to handle an upcoming divorce.

Sometimes, your best option will be to demonstrate how you’ll manage your finances like a married couple before you could legally marry in Minnesota. Other times, it may be wisest for you to collaborate or go to mediation together so that you can set your own terms for the divorce that consider your unique relationship circumstances.

Looking back at your relationship is often the first step in the process of planning for a fair divorce.

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