For some same-sex couples, the legal marriage date tells only part of the story. A couple may have shared a home, accumulated property, built retirement savings, or started a family years before they were legally able to marry in Minnesota.
Minnesota legalized same-sex marriage in 2013, and married same-sex couples are subject to the same Minnesota family law and divorce rules as other married couples. But when a relationship predates the legal marriage, the timeline can raise important questions about property and parentage.
Property: The Marriage Date Can Change the Analysis
Minnesota uses an equitable division system for marital property. Equitable division means the court divides marital property in a way it considers just and fair, rather than requiring an exact 50/50 split.
Property acquired during the marriage is generally presumed to be marital property, meaning property subject to division in the divorce. Property acquired before marriage may qualify as nonmarital property, which generally remains with the spouse who establishes the nonmarital interest.
That distinction can be particularly important for couples who spent years together before marrying.
What About Property Acquired Before Marriage?
If one spouse bought a home or acquired another significant asset before the legal marriage, the premarital interest may be nonmarital. The analysis can become more complicated when marital and nonmarital interests become mixed.
Tracing uses financial records and other evidence to show that an asset, or a portion of it, came from a nonmarital source. Older bank statements, closing documents, and account records can therefore become important.
Retirement Accounts May Have Two Timelines
A spouse may also have contributed to a retirement account both before and during the marriage. The portion connected to the marriage may be treated differently from an interest that can be traced to before the marriage.
A long relationship before marriage does not, by itself, make the entire premarital period part of the legal marriage for property-division purposes.
Parentage: How Was the Parent-Child Relationship Established?
When children are involved, the important question is not simply which parent is biologically related to the child. It is how each person’s status as a legal parent was established.
Legal parentage is the legally recognized parent-child relationship that carries parental rights and responsibilities. It can arise in different ways, including adoption, marriage, assisted reproduction, consent, and court orders.
Minnesota Updated Its Assisted-Reproduction Law in 2024
Under Minnesota’s current framework, an intended parent who consents to assisted reproduction with the intent to be a parent can be recognized as a legal parent. The law generally calls for consent in a signed record, although a court can determine that consent existed in certain circumstances without one.
The law also provides that a person who supplies genetic material as a donor for assisted reproduction is not automatically a legal parent of the child.
Older Parentage Records May Need Review
Families may have children born before the current law took effect or may have used different legal arrangements over the years. An attorney can review birth records, adoption documents, assisted-reproduction agreements, consent records, and existing parentage orders to determine how legal parentage was established.
Surrogacy requires a separate analysis because Minnesota’s current assisted-reproduction statute excludes surrogacy from its definition of assisted reproduction.
Residency: Where Can the Divorce Be Filed?
Minnesota generally requires one spouse to have lived in the state, been domiciled here, or been stationed here as a member of the armed services for at least 180 days immediately before the divorce begins.
There is also a narrow exception when neither spouse currently lives in Minnesota. A Minnesota court may have jurisdiction if the marriage was performed here and neither spouse lives in a jurisdiction that will maintain the divorce because of the spouses’ sex or sexual orientation.
Jurisdiction means a court’s legal authority to hear and decide a matter. Whether this exception applies depends on the spouses’ circumstances and where they currently live.
For Some Lake Elmo Couples, the Dates Tell the Story
A same-sex divorce does not use a separate set of divorce rules. What can make the analysis different is the history that came before the divorce.
An attorney or lawyer may need to consider:
- When the marriage became legal and which assets existed before that date.
- When major property and retirement savings accumulated in relation to the marriage.
- How legal parentage was established for each child.
- Where each spouse now lives and whether Minnesota’s residency requirements are satisfied.
Coodin Law Office, LLC is a Lake Elmo law office serving individuals and families in Woodbury, Washington County, and surrounding Minnesota communities. If you have questions about how your relationship history affects a Minnesota divorce, contact our law office to discuss the legal issues that apply to your circumstances.