In 2015, the U.S. Supreme Court ruling in Obergefell v. Hodges made same-sex marriage legal in all fifty states. While married couples of the same sex have all the same legal rights as any other married couples, they may still face some unique challenges when resolving a family law dispute in Maryland.
At Strickler, Platnick & Hatfield, we are singularly focused on achieving our clients’ goals in the resolution of a divorce, custody matter, or other family law dispute. We are sensitive to the various ways in which the application of Maryland family law may lead to an unfair result in a dispute between same-sex partners, and employ creative advocacy to achieve a just result.
Anytime parents decide that they no longer wish to be together, the issues of child custody will become paramount. Divorce is rarely simple when there are children involved because family law dictates that a custody arrangement be devised in the child’s best interest. Whenever one, or both, parents is a member of the LGBTQ community, a child custody case often becomes more complex.
Many same-sex couples made a commitment to each other long before legal marriage was an option. That commitment may have included starting a family together. Unfortunately, a spouse who is not biologically related to a child they have helped to raise, and who has not adopted that child, may have no legal rights as a parent. That means they have no automatic legal right to custody or visitation, nor to help make important decisions that will affect the child—even if they have been a part of the child’s life since birth. Such outcomes can be devastating not only for the non-biological parent, but for the child as well.
Even if a child was born during the couple’s marriage, parental rights after the marriage may still be an issue. When a heterosexual couple is married, children born or conceived during the marriage are presumed to be the legal children of the husband. Given the relative newness of legal same-sex marriage, it is unclear whether courts will apply the same presumption to the same-sex spouse of a biological parent. Similarly, few courts have addressed the issue of child support rights and obligations in these circumstances.
In Maryland, as in most states, marital property is divided equitably between the spouses in a divorce. “Equitable” may not mean strictly equal, but fair under all the circumstances. Property owned by either spouse before the marriage is considered separate and generally remains the property of that spouse. However, that rule can lead to real inequities in the divorce of a same-sex couple.
Many Maryland couples have joined their lives and finances for decades, but have been married for only a few years because the law previously prevented it. As a result, property that would have been subject to division if the couple had the legal right to marry sooner might instead be designated separate property excluded from divorce division. This can lead to one spouse receiving significantly more of the assets the couple accumulated together.
It is common for one partner in a marriage to be the primary breadwinner, often while the other cares primarily for the home and children. When the marriage ends, the spouse who earns less may need some financial assistance until they are able to become self-supporting: alimony, also known as spousal support.
When courts decide whether alimony is appropriate, and the amount and duration of an award, the length of the marriage almost always factors into the calculation. As with division of property, this can lead to an unfair outcome for same-sex couples who were denied the right to marry earlier.
Because most of the Maryland statutes dealing with the family law issues above were written with heterosexual couples in mind, their application can yield an unfair outcome for same-sex spouses. It is usually preferable for couples to craft their own agreement with the help of lawyers rather than relying upon the process of litigation. Doing so ensures that the couple is able to take into account their family’s unique needs and decide what property, custody, and support arrangements will work for them.
If a divorcing couple needs help reaching agreement, our attorneys are well-positioned to facilitate a resolution to their family law dispute. We have helped hundreds of Maryland couples negotiate the terms of their divorce and custody matters. We offer clients a variety of alternative dispute resolution options, including family mediation and Collaborative Divorce, so that they can receive the appropriate support to craft a favorable settlement based on their needs.
If settlement is not possible and the divorce or custody dispute of a same-sex couple must go to trial, sensitive, creative, and powerful advocacy is required to ensure a just outcome. At Strickler, Platnick & Hatfield, we approach trials of family law disputes strategically and with a tactician’s eye. In areas such as the divorce of same-sex couples, where the law may be unsettled, we meticulously develop and present compelling arguments designed to achieve our client’s objectives. We invite you to contact Strickler, Platnick & Hatfield to schedule a consultation regarding your situation.