3 Potential Complications of Same Sex Divorce in Maryland

(Columbia, MD) In 2012, Maryland officially legalized same sex marriage. However, because same sex marriage was not legal across the United States, same sex divorce often proved to be extremely complicated and difficult. Certain states refused to honor divorce decrees for same sex couples, which often caused great difficulty when enforcing the terms of child custody, child support, property division, and alimony.

Fortunately, many of these challenges disappeared in 2015, when the U.S. Supreme Court issued its decision to recognize same sex couples’ right to marry in the Landmark case Obergefell v. Hodges. With same sex marriage now a right nationwide, same sex divorce is treated the same as a traditional divorce would be. For more information on how to file for divorce in Maryland, including same sex divorce, click here.

3 “Gray Areas” of Same Sex Divorce in Maryland

Obergefell v. Hodges was a monumental win for the LGBTQIA+ community. However, while the legal right to marry may no longer be dependent upon sexual orientation, some practical difficulties do still exist for same sex couples seeking divorce in Maryland and beyond. Below are 3 potential challenges that couples may face in a same sex divorce.

1. Alimony

The award of alimony in a Maryland divorce depends on a number of factors. Judges will weigh a combination of need and circumstance, described by a series of components outlined in the law. One of those components is the length of the marriage. Since same sex marriage has only recently been legalized, this can cause complications for LGBTQIA+ couples who were in a committed relationship long before their union was legally recognized.

For example: Jane and Susan have been in a committed relationship and cohabiting since 2005. In 2008, they adopted a child together and made the mutual decision for Jane to quit her job and be a stay-at-home parent. In 2015, they legally married. In 2018, the couple filed for divorce and Jane requested alimony, since Susan had been the breadwinner in the family for the past 10 years. Although Jane has been financially dependent on Susan for at least 10 years while raising their child, the length and amount of Jane’s alimony award would likely be limited by the parties’ three-year marriage according to the law.

2. Property Division

In Maryland, marital property is considered to be all of the “stuff” (real estate, cars, jewelry, etc.) – that is acquired during the marriage. Non-marital property is defined as property that:

(1) was acquired prior to the marriage;
(2) was acquired by inheritance or by gift;
(3) is excluded by agreement of the parties; or
(4) is directly traceable to non-marital property.

In same sex divorces, this distinction based on whether the acquisition of the property predated the marriage can cause challenges when trying to determine equitable distribution.

For example: Daniel and Stephen purchased a home together in 2010. Stephen’s credit wasn’t very good, so Daniel was the only party on the loan, although Stephen paid 50% of the mortgage every month. The couple always intended to add Daniel to the deed, but never got around to it. In 2015, the couple legally married but, unfortunately, filed for divorce in 2017.

Because the home was purchased 5 years prior to marriage, only the equity in the home that accrued during the couple’s 3-year marriage was marital property. And, since Daniel was never added to the deed, Daniel had no enforceable legal interest in the real estate entitling him to possession, despite having paid half the mortgage for over 7 years.

3. Child Custody & Support

For LGBTQIA+ couples who gave birth to child(ren) post-marriage, both parents have legal parental rights and child custody / support issues are treated exactly the same way as they would be for opposite-sex couples facing divorce. However, issues may arise if the child was born prior to the marriage and the couple did not formalize a second-parent adoption. In this case, the courts must apply a four-part test to determine whether the non-biological parent (or, in the case of an adoption, the parent not named on the adoption paperwork) is a de facto parent.

The four-part test was adopted by Maryland’s highest court in the case of Conover v. Conover, in which the Maryland Court of Appeals determined that the ex-spouse of the child’s biological mother was, in fact, entitled to de facto parent status despite being neither a biological nor adoptive parent of the child.

Four-Part Test to Determine De Facto Parent Status

According to Conover v. Conover: “Under this test, a third-party seeking de facto parent status bears the burden of proving the following when petitioning for access to a minor child:

That the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
That the petitioner and the child lived together in the same household;
That the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Contact the Maryland Divorce Attorneys at Coover Law Firm Today

If you are facing a same sex divorce, Coover Law Firm, LLC is here to help. Experienced divorce attorney Fred L. Coover, Esquire has been helping Howard County families to navigate the murky waters of separation and divorce for over 30 years. Contact us today at (410) 553-5042 to schedule an initial consultation in our Columbia, MD office to discuss your family’s unique situation and options. We look forward to serving you!

Disclaimer: The information in this blog post is provided for general educational & informational purposes only. It is not intended to convey legal advice or serve as a substitute for legal counsel on any subject matter.