Publications

Same-Sex Couples Now Can Get Married in Maryland, But Can They Get Divorced?

Lerch Early's Legal Update

In November, Maryland voters made history when they passed Question 6, the Civil Marriage Protection Act (CMPA). Since January 1, 2013, same-sex couples have been able to get married in Maryland, as long as they meet the same qualifications to obtain marriage licenses as heterosexual couple. However, the CMPA is only the first step in what may be a lengthy process for same-sex couples seeking the protections marriage provides to heterosexual couples.

The Role of DOMA

In 1996, the federal Defense of Marriage Act (DOMA) was enacted and defined marriage as the legal union of a man and woman. In December, the Supreme Court agreed to hear a case from New York specifically addressing the constitutionality of DOMA, with a decision to be rendered by early summer 2013. However, DOMA still currently provides the federal definition of marriage. As a result, there are a number of contradictions raised by the passing of CMPA. For example, can a same-sex married couple file a joint federal tax return? How do federal rules pertaining to bankruptcy affect same-sex married couples? Do certain federal estate laws and tax relief apply to same-sex married couples?

The questions don’t end at the federal level. Although the CMPA provides a same-sex married couple with rights they did not have previously in Maryland (such as the right to request alimony or an equitable distribution of marital assets in the event of divorce), the existing statutes and case law could lead to different results for same-sex as opposed to heterosexual married couples in many areas. Under Maryland law, retirement assets can be transferred from one party to the other in the event of divorce, without taxable consequences or penalties. However, it isn’t clear whether same-sex married couples will have the same benefits while DOMA is in effect.

Same-Sex Couples with Children

Maryland has a long standing preference for custody of a child by the biological parents, versus a third party. It is not atypical for a same-sex married couple to conceive a child using the DNA of one of them and a third party. If the non-biological parent is not granted an adoption of the child, the rights of that parent are relegated to the status of grandparents, who have extremely limited rights to access with their grandchildren in Maryland. Under existing Maryland law, parents are presumed to be the biological parents of a child born to them during the marriage. This is not the case for same-sex couples currently, as the biological parents will be considered the DNA contributing spouse and the third party donor. Although there is no prohibition against a same-sex couple adopting a child in Maryland, each county may assess the propriety of the adoption very differently.

Maryland Divorce for Same-Sex Couples

Jurisdiction over a same-sex couple’s divorce also is a thorny issue. Maryland law requires a couple to reside and/or work in the state for one year before its court can preside over their divorce. If a same-sex couple gets married in Maryland, but then moves to a state that does not recognize same-sex marriages, where do they get divorced?

It is likely that both newly-married same-sex couples and those among the first to seek same-sex divorce in Maryland will be pioneers, with case law developing around the above issues as same-sex couples get married and divorced. In the meantime, if the CMPA applies to you or your loved ones, the best advice appears to be: “Stay tuned and keep your lawyer on speed dial.”

 

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

Share

Email Confirmation

Thank you for your interest in Lerch, Early & Brewer. Please be aware that unsolicited e-mails and information sent to Lerch Early though our web site will not be considered confidential, may not receive a response, and do not create an attorney-client relationship with Lerch Early Brewer. If you are not already a client of Lerch Early, do not include anything confidential or secret in this e-mail. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not authorized to do so.

By clicking "OK" you acknowledge that, unless you are a current client, Lerch Early does not have any obligation to maintain the confidentiality of any information you send us.