While the landmark 2015 U.S. Supreme Court decision of Obergefell v. Hodges made same-sex marriage legal throughout the country, the state of Maryland is proud to be the first state to legalize same-sex marriage, back in 2013. Along with the right for same-sex couples to marry came the right to get a divorce.
As all couples are now equal under the law, you might assume that LGBTQ couples don’t face additional challenges – but that is not the case. We wanted to discuss those potentially problematic areas here.
Division of assets
Many same-sex couples have had long-term committed relationships for years, even decades prior to the law’s recognition of their unions. In Maryland, however, only marital property is subject to division under the equitable distribution model of asset division. Therefore, the division of assets will only consider the property that the couple has acquired or comingled since the marriage took place, which also applies to divorcing heterosexual couples.
For example, if one spouse purchased a home several years prior to the legalization of the marriage, and never added the name of his or her partner to the deed and/or mortgage, only the equity which has accrued since the marriage is considered marital property.
This issue could also arise in regard to pensions. If, for example, you are an employee of the State, then the Court may consider the length of the marriage before deciding how much of your soon-to-be-ex-spouse’s pension you are entitled to receive. If you have been together for 20 years, but only legally married for seven years, then you may only be awarded seven years’ worth of that pension.
Alimony and spousal support
The length of the marriage is just one of the factors that the court uses in determining whether alimony would be appropriate in a divorce agreement. Other factors include the couple’s standard of living while they were married, both spouses’ financial resources and needs, each spouse’s contribution to the marriage, and so forth. Alimony, remember, is never guaranteed to either spouse.
In situations where one spouse works outside of the home, and the other takes care of the home and the children, it is possible that the Court may not consider the years the couple was together before they were legally married. Therefore, if the relationship and their agreement (about who will stay at home and who will work outside the home) pre-dates their official marriage date, the final alimony award may only be based on up to seven years of marriage. This scenario also applies to heterosexual couples.
Child custody and support
Custody and support are often challenging issues in divorce, regardless of the sexual orientation of the parents. If a same-sex couple has given birth to the child after their legal marriage, then both spouses are legal parents of the child, and custody and support can be decided as it would be for a heterosexual couple. If the child was born to one of the spouses before the marriage, or if one of the spouses adopted the child prior to the marriage and the second spouse did not legally adopt the child, Maryland courts will apply a four-part test to determine if the second parent is a de facto parent, and therefore eligible for custody. De facto parents will also be responsible for paying child support.
The issues raised here can affect gay and lesbian couples, but they can also affect unmarried, heterosexual couples. Your best chances for a successful outcome is to work with an experienced Annapolis divorce lawyer who has experience working with same-sex couples.
If you are part of a same-sex couple and you are considering divorce, the Annapolis divorce attorneys at Cynthia H. Clark & Associates, LLC are here to represent your interests. We fight for the best possible outcome in your case. You may request a consultation today by calling 410.921.2422 or completing our contact form.