Same-Sex Divorce in Maryland

It is easy to say that there is no difference whatsoever between traditional and non-traditional divorces in Maryland; however, gay and lesbian marriage and divorce are still somewhat of a novelty. Lawyers at Wendy Satin Law are skilled in handling both traditional and non-traditional divorces, and they recognize the great deal of uncertainty and trepidation that same-sex spouses experience when confronting the dissolution of their marriage: concerns for their children, division of their assets, and so much more.

Following the U.S. vs. Windsor Supreme Court ruling in 2013, gay and lesbian divorces in Maryland are recognized and treated the same as all other divorces. Still, Maryland law cannot govern the distribution of federal employees’ benefits, such as pension and retirement accounts, until the federal government fully recognizes gay marriage.  Until then, the equitable distribution of assets in a gay or lesbian divorce will be complicated when one, or both, spouses are employees or retirees of the federal government, even if they were wed in a state where same-sex marriage is legal. Other problems may arise for marriages that took place in states that do not recognize same-sex marriage, because many federal agencies such as the U.S. Citizenship and Immigration Services and the U.S. Office of Personnel and Management look to the state where the marriage was performed to determine whether the same-sex spouses are eligible for benefits.

As in traditional divorces, parties must meet the Maryland residency requirements. The length of time the spouse must reside in the state prior to filing a complaint for divorce depends on where the grounds for the divorce occurred. If the grounds for divorce occurred in Maryland, the spouse filing the Complaint for Divorce only needs to be living in Maryland at the time the complaint is filed. If the grounds for divorce occurred outside of Maryland, one of the spouses must reside in Maryland for one year immediately prior to filing the complaint.

History of Same-Sex Marriage and Divorce

In 1996, under President Bill Clinton, the Defense of Marriage Act (DOMA) was passed.  DOMA defined marriage as the union of one man and one woman for all federal purposes, but it also allowed states to refuse to recognize same-sex marriages performed in other states where same-sex marriages were celebrated.

Maryland law recognized same-sex divorces in 2010. This law was a harbinger of what was to come, because it was enacted three years before Maryland recognized gay and lesbian marriages. The right of a same-sex couple to celebrate their marriage in Maryland was legitimized when the majority of Maryland voters approved Governor Martin O’Malley’s Civil Marriage Protection Act on November 6, 2012. This new law went into effect on New Year’s Day in 2013.

The Supreme Court made a historic decision on June 26, 2013 (United States vs. Windsor), ruling that DOMA is unconstitutional. They stated that DOMA is a deprivation of the equal liberty of persons protected by the 5th Amendment and that the federal government could not deny the federal benefits of marriage to married same-sex couples if their marriage was recognized or performed in a state that permits same-sex marriages.  With the Windsor ruling, the Supreme Court struck down the provision of federal law that had formerly blocked the federal government from recognizing same-sex marriages!

Prior to the Windsor ruling – when the federal court denied recognition of same-sex marriages – the assets transferred in a same-sex divorce settlement were considered, and treated, as gifts.  This treatment caused numerous difficulties and legal quandaries.

Attorney General Eric Holder expanded recognition of same-sex marriages in federal legal matters on February 8, 2014. In a memo to all Justice Department employees, he said that it is the department‘s policy to recognize lawful same-sex marriages as broadly as possible, for example when visiting a spouse incarcerated in federal prison, receiving survivor benefits from police officers and firefighters killed in the line of duty, filing federal bankruptcies, and refusing to testify in court against a spouse. In situations where the U.S. government has jurisdiction, this federal expansion encompasses the states where same-sex marriage is not legal.

Currently, there is a bill called the Respect for Marriage Act in the pipeline. The Respect for Marriage Act, if achieved, will not prohibit states from allowing same-sex marriages, but it will allow states to refuse to recognize same-sex marriages performed and celebrated in other states.