Maryland LGBT Divorce

Love is love, and when two people decide to marry, they deserve the same rights and protections regardless of their gender or sexual orientation. Since same-sex marriage became legal in Maryland in 2013, and nationwide in 2015, LGBT couples have gained the right to marry, and, unfortunately, when necessary, the right to divorce. While Maryland law treats same-sex divorce the same as any other divorce in most ways, LGBT couples still face some unique challenges that require special attention and understanding.

The History of Same-Sex Marriage and Divorce in Maryland

Understanding how we got to where we are today helps explain some of the challenges LGBT couples face during divorce. The journey to marriage equality has been relatively recent, which creates specific complications for same-sex spouses seeking divorce.

Maryland took an important step forward on January 1, 2013, when same-sex marriage became legal in the state. This happened after voters approved the Civil Marriage Protection Act through a referendum in November 2012. Maryland became one of the first states to legalize same-sex marriage through popular vote rather than just through court decisions or legislative action. This was a historic moment that gave LGBT couples in Maryland the same marriage rights that opposite-sex couples had always enjoyed.

Even before Maryland allowed same-sex couples to marry within the state, Maryland courts had ruled that same-sex marriages performed in other states or countries could be recognized for divorce purposes. This meant that if a same-sex couple got married in a place where it was legal, they could get divorced in Maryland even before they could have gotten married here.

The biggest milestone came on June 26, 2015, when the United States Supreme Court decided the case of Obergefell v. Hodges. This landmark decision legalized same-sex marriage in all fifty states, making marriage equality the law of the entire country. After this ruling, no state could refuse to perform same-sex marriages or refuse to recognize same-sex marriages performed in other states.

These legal changes mean that today, LGBT couples have the same rights to marry, and to divorce, as everyone else. However, because same-sex marriage has only been legal for a relatively short time, unique challenges still exist when these marriages end.

Basic Requirements for Divorce in Maryland

Whether you're in a same-sex marriage or an opposite-sex marriage, the basic requirements for getting divorced in Maryland are the same. Understanding these requirements is the first step in the divorce process.

Residency Requirements

To file for divorce in Maryland, at least one spouse must be living in Maryland when the divorce papers are filed. The length of time you need to have lived in Maryland depends on where the reasons for your divorce occurred.

If the grounds for your divorce happened in Maryland (for example, if you and your spouse separated while living in Maryland), then you only need to be living in the state when you file for divorce. However, if the grounds for divorce occurred outside Maryland, at least one spouse must have lived in Maryland for at least six months before filing the divorce complaint.

For LGBT couples who may have married in another state or country before moving to Maryland, these residency requirements are important to understand. The good news is that once you meet the residency requirement and file for divorce, you can move elsewhere in Maryland or even out of state and still continue your divorce case. What matters is that you were a Maryland resident when you filed.

Grounds for Divorce

Maryland recently simplified its divorce laws, making it easier for all couples to divorce. As of October 1, 2023, Maryland eliminated fault-based grounds for divorce and now only has three no-fault options:

Maryland's Three Grounds for Divorce:

• Irreconcilable differences (meaning you have problems in your marriage that can't be fixed and make it impossible to continue being married)
• Six-month separation (you and your spouse must have lived apart for at least six months with no expectation of getting back together)
• Mutual consent (both spouses agree to the divorce and have signed a settlement agreement resolving all issues)

The mutual consent option is often the fastest way to get divorced, but it requires both spouses to agree on everything, including how to divide property, whether anyone will pay alimony, and if you have children, how custody and child support will work.

Types of Divorce in Maryland

As of October 1, 2023, Maryland eliminated "limited divorce" (which was similar to legal separation) and now only grants absolute divorces. An absolute divorce completely ends the marriage, meaning both people are free to remarry if they choose. This applies equally to same-sex couples and opposite-sex couples.

Dividing Property in Same-Sex Divorces

One of the most important parts of any divorce is figuring out how to divide property and assets that you accumulated during your marriage. Maryland uses a system called "equitable distribution," which means property is divided fairly, though not necessarily equally.

What Counts as Marital Property

In Maryland, marital property includes most things acquired during the marriage, regardless of whose name is on the title or who paid for it. This can include your house, cars, furniture, bank accounts, retirement accounts, investments, and even businesses. Property you owned before getting married, inheritances you received, and gifts given to only one of you are generally considered separate property and aren't divided in the divorce.

The Unique Challenge for Same-Sex Couples

Here's where LGBT couples face a special problem that opposite-sex couples don't encounter: many same-sex couples lived together and shared their lives for many years before they were legally allowed to marry. You might have bought a house together in 2005, opened joint bank accounts in 2008, and built a life together for a decade or more before you could finally get married in 2013 or later.

Under Maryland's equitable distribution laws, only property acquired during the marriage counts as marital property. This means that if you bought your house together in 2005 but didn't get married until 2015, that house might be considered separate property belonging to whoever's name is on the deed, even though you both contributed to buying it and paying the mortgage for years.

This can create serious unfairness. Imagine a couple who lived together for fifteen years, sharing expenses and building a life together, but could only legally marry for the last five years before divorcing. Under strict application of the law, only assets from those five married years would be divided, while assets from the previous fifteen years might not be.

Factors Courts Consider When Dividing Property:

• The length of the marriage (unfortunately, not always the length of the relationship)
• Each spouse's financial contributions to buying and maintaining property
• Non-financial contributions like homemaking and childcare
• The economic circumstances of each spouse after divorce
• The age and health of each spouse
• How and when specific property was acquired
• Any prenuptial or postnuptial agreements

Good attorneys can make arguments that courts should consider the full length of the relationship when dividing property, especially if the couple would have married earlier if the law had allowed it. Some couples address this issue by creating written agreements before or during marriage that acknowledge their long-term relationship and specify how property should be divided.

Alimony and Spousal Support

Alimony, also called spousal support, is money that one spouse pays to the other after divorce to help support them. Not everyone gets alimony, but it can be awarded when one spouse needs financial help and the other spouse can afford to pay.

How Alimony Works in Maryland

Maryland courts look at many factors when deciding whether to award alimony and how much it should be. These factors include the ability of the spouse seeking alimony to support themselves, how much time they need to get education or training for employment, the standard of living during the marriage, how long the marriage lasted, and the financial needs and resources of each person.

LGBT couples face a particular challenge with alimony because the length of the marriage is a very important factor. Courts typically award more alimony for longer marriages. But if a same-sex couple were together for twenty years and could only legally marry for the last five years, the court might only consider those five married years when deciding on alimony.

This can be especially unfair when one partner sacrificed their career to support the other partner or to care for children. For example, imagine one partner worked as a lawyer while the other stayed home with the children for fifteen years. When they finally could marry, they did so, but divorced three years later. Under a strict reading of the law, the stay-at-home parent might only receive alimony based on a three-year marriage, even though they sacrificed their career for eighteen years total.

Skilled family law attorneys who understand LGBT divorce can argue that courts should consider the full length of the relationship, not just the legal marriage, when making alimony decisions. Some judges have been willing to do this to reach a fair result.

Types of Alimony

Maryland courts can award different types of alimony:

Child Custody and Support in LGBT Divorces

If you have children, child custody and support will be among the most important and emotionally difficult parts of your divorce. LGBT couples face unique challenges in this area that require careful attention and often proactive legal steps.

Establishing Legal Parenthood

The biggest issue LGBT couples face with children is establishing legal parenthood for both parents. In opposite-sex marriages, when a child is born during the marriage, both spouses are automatically considered legal parents. For same-sex couples, this isn't always so simple.

If only one parent is biologically related to the child, which is common in lesbian couples where one partner gave birth, or in gay male couples who used a surrogate, the non-biological parent may not automatically be considered a legal parent. Even if both parents have raised the child together from birth, even if the non-biological parent is listed on the birth certificate, and even if everyone considers both people to be the child's parents, the law might not recognize it without proper legal steps.

Ways to Establish Legal Parenthood:

• Adoption by the non-biological parent (the most secure method)
• Court orders establishing parenthood
• Being married when the child is born (courts are increasingly recognizing both spouses as legal parents)
• Proving "de facto parent" status (a legal concept that recognizes someone as a parent based on their relationship with the child, even without biological ties or adoption)

If legal parenthood hasn't been established for both parents, the non-biological parent could face devastating consequences during divorce. They might have no legal right to custody or even visitation with a child they've helped raise from birth. This is why LGBT couples with children should take legal steps to establish parenthood for both parents as early as possible, ideally soon after the child joins the family.

How Custody Decisions Are Made

Once both parents' legal status is established, Maryland courts decide custody based on the best interests of the child. This standard applies equally to same-sex couples and opposite-sex couples. Courts don't favor one parent over another based on gender, sexual orientation, or biological relationship.

Factors Courts Consider for Custody:

• The child's age, health, and specific needs
• The emotional bond between the child and each parent
• Each parent's ability to provide for the child's physical and emotional needs
• The child's adjustment to home, school, and community
• Each parent's willingness to support the child's relationship with the other parent
• Any history of abuse, neglect, or substance abuse
• The preferences of older children (when appropriate)

There are two types of custody that courts decide:

Legal custody means the right to make important decisions about the child's life, including education, medical care, and religious upbringing. Legal custody can be sole (one parent decides) or joint (both parents share decision-making).

Physical custody means where the child lives and who takes care of the child day-to-day. Physical custody can also be sole or joint. Even if one parent has primary physical custody (the child lives with them most of the time), the other parent typically gets visitation time.

Child Support

Once custody is determined, the parent who has the child less often typically pays child support to the parent who has the child more often. Maryland uses specific guidelines based on both parents' incomes and the number of children to calculate child support amounts.

Child support obligations are based on legal parenthood, not biological relationship. If both spouses are legally recognized as parents (whether through biology, adoption, or court order), then child support works exactly the same as it does for opposite-sex couples.

The LGBT Divorce Process in Maryland

The actual process of getting divorced is the same for same-sex couples as for opposite-sex couples, but understanding each step helps you know what to expect.

Step 1: Filing the Complaint

One spouse files a Complaint for Absolute Divorce with the Circuit Court in the county where either spouse lives. This document states the grounds for divorce and what you're asking the court to do regarding property, alimony, custody, and support.

Step 2: Serving Your Spouse

The other spouse must be officially notified about the divorce by being "served" with copies of the papers. This can be done through a private process server or the sheriff's office.

Step 3: Response

The spouse who was served can file an Answer responding to the complaint. They might agree with everything, disagree with some things, or file their own requests.

Step 4: Negotiation or Mediation

Most divorces are settled through negotiation between the spouses and their attorneys, or through mediation where a neutral third party helps you reach agreements. Settlement is usually faster, cheaper, and less stressful than going to trial.

Step 5: Agreement or Trial

If you reach agreements on all issues, you'll submit a settlement agreement to the court. If you can't agree, you'll have a trial where a judge will decide contested issues.

Step 6: Final Divorce Decree

Once everything is resolved, the court issues a final divorce decree that officially ends your marriage and includes all the terms regarding property, support, and if applicable, custody.

Protecting Your Rights During LGBT Divorce

Going through divorce is difficult for everyone, but LGBT couples need to be especially careful to protect their rights given the unique challenges they face.

Working with the Right Attorney

The single most important step you can take is hiring a family law attorney who has specific experience with same-sex divorce. Not every divorce lawyer understands the unique issues LGBT couples face, such as how to argue for considering relationship length beyond the legal marriage, how to establish legal parenthood, or how to address property acquired before marriage was legal.

Look for an attorney who:

• Has successfully handled LGBT divorce cases
• Understands Maryland family law thoroughly
• Shows sensitivity to your unique situation
• Makes you feel comfortable and respected
• Communicates clearly and keeps you informed

Many LGBT advocacy organizations can provide referrals to LGBT-friendly attorneys in your area.

Documenting Your Relationship

If your relationship began long before your marriage, document this. Keep records showing when you started living together, when you made financial commitments to each other, and evidence of your long-term partnership. This documentation can help your attorney argue that the court should consider your full relationship when making decisions about property and alimony.

Protecting Children's Relationships

If you have children and the other parent isn't their legal parent yet, consider whether it's in your children's best interest to help establish that legal parenthood even though you're divorcing. While this might seem counterintuitive, children benefit from having legal relationships with both parents who have been raising them.

Considering Mediation

Mediation can be especially helpful for LGBT couples because it allows you to create solutions that reflect your unique situation rather than relying on strict application of laws that weren't written with same-sex couples in mind. In mediation, you and your spouse work with a neutral mediator to reach your own agreements on all divorce issues.

Moving Forward After Divorce

Divorce is painful, but it's also a new beginning. As you move forward, remember that you have the same rights as anyone else to build a happy, fulfilling life. Maryland's legal recognition of same-sex marriage and divorce means you have legal protections and rights that LGBT people in previous generations could only dream of.

Take time to heal emotionally, lean on your support network, and don't hesitate to seek counseling or therapy if you need help processing this major life change. If you have children, focus on maintaining stability for them and encouraging their relationship with both parents.