By Jerry A. Burg
In the years I’ve been practicing law I’ve spoken to a number of Minnesota residents who married their same sex partner in either Canada, or a state that recognizes gay marriage and later wanted to dissolve that marriage. Prior to the enactment of the “gay marriage” legislation, the Minnesota defense of marriage act (Minnesota Statute § 517.03) presented an obstacle for those folks who wanted to dissolve their marriages. Under the old Minnesota defense of marriage act, same sex marriages from other states were void in Minnesota and “the contractual rights granted by virtue of the marriage or its termination [were] unenforceable in this state.” The individuals I spoke with over the past years typically chose NOT to test the waters by attempting to have a Minnesota court dissolve their solemnized-elsewhere marriage. In other words, people who got married elsewhere but lived here couldn’t divorce here, even though heterosexuals who married each other in other states get divorced here all the time. Broken-up Minnesota couples were, for all practical purposes, left without a way to end their marriage. Most states, like Minnesota, require that a person live in the state for a period of months before starting a divorce; in 2012, Vermont enacted a provision in its civil union/marriage statute that allows same sex couples who had a Vermont civil union or marriage to have it dissolved there if they live in a state that does not recognize same sex marriage or civil unions. That option for those united in Vermont no longer exists for Minnesotans who married there.
“What difference does it make?” Well, you and the ex you once married in another state are now married in Minnesota. That means you have a legal spouse and cannot legally marry another. All those marriage rights we campaigned, marched, and cheered for popped into existence on August 1, 2013: you and your ex now have some rights to claim against the other’s estate if Karma deals either of you an unexpected death; you have the right to attend each other at the hospital and possibly participate in health care decisions; income earned during the marriage is “marital property” and with spousal maintenance is now on the table, letting a marriage go on and on, even though you may not have lived together for years, opens the door to issues that make money for us lawyers and leave parties angry and, well, broke. The United States Supreme Court decision in the Windsor case made marital status a key consideration for married-elsewhere gay Minnesota exes because for purposes of tax filing status, tax rates, social security benefits, and sharing retirement assets, you’re now married to your ex!
I was lucky enough to participate in a Quorum sponsored panel to discuss various aspects of the impact of the Minnesota gay marriage legislation and the recent Supreme Court Windsor decision with community members who came to listen to lawyers and financial planners wax on about what we think you should do. I was reminded of some important Minnesota laws that impact you if you are married. Various laws establish rights, obligations, and in some respect, limitations for legal spouses. In addition to the treatment of a spouse within the myriad of family law statutory provisions, a legal spouse experiences unique treatment in statutes governing the disposition of one’s estate upon death and within a multitude of laws regarding health care. Marital status can be an important factor because of laws pertaining to corporations, laws defining the existence of certain kinds of personal injury lawsuits, and laws concerning who can be forced to testify against another. Some insurance laws create significant rights for legal spouses and for individuals seeking and/or receiving Medicaid who must spend down assets, spouses have significance that does not apply to life partners.
Even as a single person, it’s been exciting to experience the affirmation and good will that has come with the passing of the Minnesota same sex marriage legislation and the recent Windsor decision from the Supreme Court. The joy may be short lived for some married-elsewhere folks whose relationships ended when the old Minnesota DOMA was still the law because they are now married to their exes as of August 1st. There are too many significant rights, obligations and considerations that accompany marriage to not end it, if the relationship is indeed over. It seems counter to my activist soul to be writing an article warning my community to be wary of the consequences of winning this huge fight…but warn I must: contact me or any of the other excellent family lawyers you find in this fine magazine and ask us questions. The bitter old queen who sits on my shoulder is reminding me that gay marriage in Minnesota could disappear if social conservatives win both legislative houses and the governorship in 2014…but I try not to listen to her. Do yourself, your family, and your current paramour the favor of divorcing your ex before you NEED to.
Attorney Jerry A. Burg is an adjunct professor at William Mitchell College of Law and has over 20 years experience practicing in the areas of family and criminal law. Find him at www.jerryaburg.com.