Same Sex Divorce
Same sex divorce is coming to Maryland. Maryland was the first state to legalize same-sex marriage in 2012 by popular vote. Effective January 1, 2013, same sex marriage became legal in Maryland.
You can also get a same sex-sex divorce in Maryland based on any of the grounds for divorce, but the most practical ground for divorce is what is known as a “no-fault” divorce based upon a one year separation. One year separation means that the spouses must live separate and apart for one year. Getting a divorce based on adultery is problematic because the Maryland statutes require sexual intercourse between a man and a woman. The Maryland statutes have not caught up with same-sex marriage.
Same-Sex Divorce Law Needs to Catch Up
Another disconnect is the awarding of alimony. Alimony in Maryland is based on 12 factors. Because one of the major factors is the length of the marriage and because same-sex marriage has been legal for only two years, the determination of alimony doesn’t reflect the true long term nature of many same-sex relationships. A long-term same sex relationship that results in a short-term marriage will not provide the same protections and rights to the parties upon divorce. as if the couple had been married during the entire time of their relationship.
There is a similar disconnect in determining the amount of a monetary award. Three of the factors in determining a monetary award are related to the length of the marriage. These factors only consider the property acquired during the legal marriage.There is an equitable argument that the court needs to consider the entire length of the relationship in determining a monetary award.
In the fullness of time, the Maryland legislature is sure to correct these inequities, but in the short term it is important to be aware of the limits of current law.
Other states are likely to have the same legislative constraints in determining equitable results for a same sex marriage in the areas of the ground of divorce; property division, and alimony determination.
The best way to resolve these issues is through a Marital Separation Agreement between the parties which reflects their consensual agreement in these areas.