Same Sex Divorce Difficulties

Story first appeared in The Washington Post.

When the plaintiff showed up in court Friday to pursue a divorce, she first stopped to consult with her lawyer. Then she crossed the room to hug her ex, chatting happily until it was time to be seated.

They both want to get divorced. But a Prince George’s County judge said they could not, reasoning that because same-sex marriage is not legal in the state, neither is same-sex divorce.

Now the highest court in Maryland will decide whether he was right, and whether the women will be required to maintain a bond they’ve tried for almost two years to sever.

The case represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. Family law is constantly evolving and election-year politics promise to heighten the already divisive passion surrounding the issue.

The plaintiff was 21 when she met the defendant at a meeting for gay and lesbian students and their allies at Montgomery College in Rockville. The two quickly fell in love and after a year decided to move in together. An engagement followed and when California legalized same-sex marriage in 2008, they flew to San Francisco, exchanged vows at the courthouse and spent the rest of the trip sight-seeing.

But soon after their return it became apparent that the marriage wasn’t working. They realized that the futures that they had in mind were very different and that they wanted different things.

The plaintiff moved to Hyattsville and purchased a home. The defendant remained in the District, where they had been living. The plaintiff knew that in order to file for a divorce in Maryland, spouses must first live apart for a year. In the summer of 2010, the plaintiff and the defendant, who have many mutual friends and an amicable relationship, spoke again and decided together that divorce was the best option for them.

They sought guidance at a free law clinic and were assured that the divorce was no problem — other same-sex couples had been granted divorces in the past. The plaintiff filed the requisite paperwork with Prince George’s County and on the day of the hearing, she and the defendant sat next to each other in court, playing Hangman and Tic-tac-toe to pass the time. They watched as one couple after another was granted a divorce.

The women had already divided their property. The divorce was uncontested and they had no outstanding issues for the court to resolve. They were sure their case was cut and dried. But when they were called to the bench — the last case of the day — the Judge said his decision would be delivered by mail.

Two weeks later the plaintiff received a letter saying that because she and the defendant are both women their divorce could not be granted.

The plaintiff recalls  how surprised and panicked she was about the idea of being legally tied to this person for the rest of her life.  The plaintiff is an effervescent, chatty woman who favors floral skirts and wears artsy glasses. On her left hand is a diamond ring. About two years ago, she met another woman.

After the divorce was denied, the plaintiff reached out to Lambda Legal, which put her in touch with her lawyer, who has seen many similar cases in her 30 years as a lawyer.  She says that about fifty percent of gay couples break up — just like straight people.

The plaintiff’s lawyer had one client move to D.C. from North Carolina solely for the purpose of pursuing a divorce after same-sex marriage became legal in the District. She has advised clients who live in Virginia and cannot divorce their same-sex spouses to get separation agreements that allow them some legal and financial protection. The plaintiff’s lawyer has worked with more than one person who has gotten hung up trying to adopt a child with a current partner while still legally married and unable to divorce a former spouse.

The plaintiff says moving on from the relationship is difficult when legal entanglements remain. The plaintiff is concerned about the type of entitlement her ex has on her house and car. Life would become even more complicated if either of the women had a baby or became ill and needed someone to make medical decisions on her behalf.  At that point, it would become far more than a typical family law case.

In March, the Governor signed legislation to legalize same-sex marriage in Maryland. But the law isn’t scheduled to go into effect until Jan. 1, 2013. If it goes through, the women would be able to divorce without a problem. But there is a referendum on the ballot to repeal the law — and the women and their lawyers aren’t willing to take the chance to see how it turns out.

On Friday, the legal director of the National Center for Lesbian Rights, argued the plaintiff’s case before a panel of eight judges at the Court of Appeals in Annapolis. The defendant and the plaintiff sat a row apart and eagerly looked on as it was explained that for more than 100 years Maryland courts have applied a “common law doctrine of comity” to recognize marriages that were valid in other states, even if they were illegal in Maryland, as was the case in a marriage between an uncle and niece.

There is no way of knowing when the judges will make a decision, but the plaintiff’s lawyer expects it will be a matter of months. If the divorce is not granted, the plaintiff and the defendant will have other options. Because same-sex marriage is now legal in the District, the defendant can file for divorce there.

But the plaintiff says the case — which has grown much more significant than she ever imagined — is not just about the two of them anymore. There is a similar case pending in Baltimore.  And the family lawyer has several other same-sex clients getting ready to file for divorces in Maryland.