Special Issues in Same Sex Divorce – Are all Marriages Equal in Divorce Court?

Maryland has legalized same sex marriage by popular vote in 2012. Now the Supreme Court has acknowledged the validity of same sex marriage throughout the country. Of course, after parties get married, some of those parties decide to divorce. However, not all divorces are treated equally, because some of the doctrines surrounding divorce have traditionally been applied only to long standing heterosexual marriages.

For example, one of the grounds often asserted to obtain a divorce in Maryland is that of adultery. However, adultery has traditionally been given a limited and narrow definition, involving vaginal intercourse between a married person and someone other than his or her spouse. Because of this limited definition of adultery, typically interpreted to apply to sexual intercourse between a man and a woman, by definition it is technically not applicable to infidelity in a same – sex relationship. As a result, this limited definition may deprive same sex couples of this ground for absolute divorce. It would be appropriate for the legislature to consider expanding the definition to be applicable to physical relationships between persons of the same sex.

Alimony may also be looked at differently in a same sex relationship. There are twelve factors that the court applies in deciding whether to award alimony, and some of them are influenced by the length of the marriage. One of the primary considerations in an alimony award is the duration of the marriage – an economically dependent spouse who has been married for 35 years is much more likely to obtain alimony than someone married for only three. However, same sex marriage has only been legal in Maryland for three years. The couple may have been in an extended committed same sex relationship, but the brief duration of the marriage may impact the economically dependent spouse’s ability to obtain alimony. Should the court consider the length of the entire relationship in a same sex divorce?

The same issue applies with respect to a monetary award where once again the length of the marriage is a factor. Marital property is defined to include property acquired during the marriage. However, a long term same sex couple may have acquired substantial assets and property during the relationship but before the date of their actual marriage. Should the court consider the full length of the couple’s relationship rather than the short term length of that marriage?

Maryland has recognized same sex marriage for several years; however, other principles and doctrines related to the divorce process and grounds must be revised so that same sex divorce is treated equally with divorces of heterosexual couples.

For more information on same sex marriage and divorce, call Towson divorce lawyers at Huesman, Jones & Miles at 443-589-0150 or contact us online.

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