Articles Posted in Same-Sex Marriage

Each state has the authority to enact laws regulating marriage and divorce. For this reason, there can be significant differences among the states with respect to myriad related issues. For instance, as recently as last year, the highest court in the country struck down certain state bans on same-sex marriage. While many states, Maryland included, already recognized and upheld same-sex marriages, some states did not. This decision paved the way for equality in marriage. Interestingly enough, such equality can impact other family law rights, such as a same-sex couple’s right to pursue divorce, as well as the right to adopt children. Due to the unique nature of each state’s laws, it is important to consult with a local Maryland family law attorney if you are considering a divorce or any legal procedure affecting your family.

With respect to equality in family law issues, according to a national news article, the United States Supreme Court just recently reversed a decision by the highest court in Alabama that refused to recognize a same-sex adoption.  Here, two women — V.L. and her partner E.L. — never married and lived in Alabama. E.L. gave birth to three children while the couple was together. In order for V.L. to be able to adopt the children, the women established a temporary residency in Georgia. A Georgia court granted V.L. parental rights.

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Any divorce case involving children, and the attendant questions of custody and visitation, typically includes many emotional and practical challenges. The parties separating must address issues such as physical and legal custody and the visitation rights of the non-custodial parent. It is extremely important to understand your rights under the circumstances of the divorce, especially at the very beginning of the proceedings. To protect your family’s rights in a divorce case, you are encouraged to reach out to an experienced Maryland family law attorney as soon as possible.

Child custody issues can become even more complicated in same-sex marriages, in which the local state laws (statutory or common law) have not quite caught up with the needs of such divorcing couples. Consider a recent case, Conover v. Conover, in which the parties disputed one spouse’s right to custody and visitation. Here, the couple began a relationship in 2002 and decided to try artificial insemination, by an anonymous donor, in order to conceive a child. At the time, the couple, Brittany and Michelle, lived in D.C., where same-sex marriage was not legal.

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As the nation awaits the United States Supreme Court’s imminent and historic decision on same sex marriage, other courts in the country are addressing issues of particular importance to same sex couples:  can they get divorced? Since states draft and enact their own laws governing marriage and divorce, the landscape throughout the country varies a great deal from place to place. A same sex couple who marries in a state where it is legal may find some difficulty obtaining a divorce from a state that does not recognize the union. Divorce laws serve to protect the parties’ rights throughout the process and going forward, once the couple separates. If you are considering a divorce, whether from a same sex marriage or not, it is vitally important that you contact a local Maryland divorce attorney who can guide you through the process while seeking to protect your financial and legal rights.

In a very recent divorce case, the highest state court in Texas ruled that the State Attorney General (“AG”) could not stop the divorce of a same sex, Texas couple who were married in Massachusetts. Essentially, the court held that the AG did not intervene in a “timely manner.” Here, the parties were married in 2004 in Massachusetts. However, several years later a Texas district court granted the couple’s divorce. The AG later attempted to intervene in the case and stop the divorce. In 2011, a court of appeals in Austin concluded that the attorney general’s office did not have standing to appeal the divorce between two state residents. On appeal, a majority of the highest state court agreed, avoiding the crux of the issue by pointing out that the decision was limited to whether or not the AG’s office’s effort to intervene was timely.

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Many family law cases, such as a divorce or separation proceeding, involve child custody and visitation issues. When the divorcing spouses are the biological or adoptive parents of the children involved, Maryland law provides ample protections with respect to their parental rights and responsibilities going forward. Significantly, courts have the authority to order a parenting arrangement and child support, in accordance with the best interests of the child. And if the spouse who is required to pay child support fails to meet the obligation, courts are empowered to take extra measures to ensure that the child is financially supported. If you are faced with a child custody, visitation, or support issue, you are strongly encouraged to contact a local family law attorney who can work to ensure that your (and your child’s) rights are adequately protected.

According to a recent article in the Baltimore Sun, the current law fails to address the “parental” rights of a couple who splits up, when neither spouse is the biological or adoptive parent of any children they are raising. In this kind of a case, Maryland state courts would effectively regard such parents as “legal strangers,” regardless of whether they have raised the child or not. At the heart of this problem are any children from this relationship, who stand to lose the love, emotional security, and financial support of one or more parents who wish to retain their parental rights and responsibilities.

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State laws govern various aspects of marriage and divorce. Since each state has the authority to enact such laws, there are many differences, both procedural and substantive, throughout the country. Here in Maryland, in 2012, Governor Martin O’Malley signed Senate Bill 116, the Civil Marriage Protection Act, thereby legalizing same-sex civil marriage in the state. By doing so, Maryland became the eighth state in the country to legalize same-sex marriages. But not all states have taken the same initiative, leaving same-sex couples with certain obstacles with respect to marriage and divorce. If you are considering divorce, an experienced Maryland family law attorney would be able to review your case to come up with the best strategy to protect your rights under the circumstances.

A controversial case from Mississippi illustrates one of the problems couples may face when seeking to dissolve a same-sex marriage. Here, two women (Lauren Czekala-Chatham and Dana Ann Melancon) were married in California in 2008. They bought a house together in Mississippi prior to separating in 2010. Upon filing for divorce, the court advised the couple that under Mississippi state law – which does not recognize same-sex marriages — it did not have the authority to grant the divorce. Specifically, the court pointed out that the Mississippi Constitution and the state statutes prevented it from doing so. While the couple may pursue their divorce in California, Czekala-Chatham has stated that they should not be treated differently than straight couples. She appealed the court’s decision.

The Governor of Mississippi, Phil Bryant, has decided to intervene in the case by opposing the appeal to the highest court in the state. The court granted the Governor’s motion to intervene, and the Mississippi Supreme Court has indicated that it would hear the case rather than assign it to the appellate court. Parties who are against the granting of the divorce argue that each state should be permitted to make its own rules.

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In 2012, Governor O’Malley led a campaign for the legalization of same-sex marriage. This led to the General Assembly passing a law permitting same sex marriage in February 2012. 52.5% of Maryland voters approved the law in a referendum on November 6, 2012. This was the first time marriage rights have been given to same-sex couples through a popular vote. It was a particularly significant change because Maryland was the first state to specifically define marriage as a union between a man and a woman in the early 1970s. The law took effect on January 1, 2013.

In 2007, the court found that the statutory ban on gay marriage was constitutional. However, last year, the Maryland Court of Appeals issued a decision in the case Port v. Cowan, which suggested the tides of opinion were changing.

Port v. Cowan arose when two women, Jessica Port and Virginia Anne Cowan, married in California in 2008 at a time when California recognized domestic same-sex marriages. The couple separated voluntarily for more than a year. About two years later, Port filed for divorce in the Circuit Court for Prince George’s County where she lived then. Cowan did not contest the divorce. Continue reading →

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