Same Sex Divorce, Continued

Scales of JusticeIn my last post, I spoke of the legal issues gay married couples are facing when they attempt to divorce. This roadblock to divorce is created when couples who reside in states that do not recognize same sex marriage, are refused the right to divorce on the basis that the marriage is a non-existent contract, and non-existent contracts cannot be terminated.

Happily, I have some good news to report.

There is currently pending before the Maryland Court of Appeals, a case involving a couple who were married in California, during a small window of time when same-sex marriages were legal there, and now seek to divorce in Maryland where they reside.

The couple lost their case in the lower court where Maryland Judge A. Michael Chapdelaine refused to grant the couple a divorce asserting that, “to recognize the alleged marriage would be contrary to Maryland public policy.” But the women argue that Maryland grants divorces to other Maryland couples who were married outside of Maryland and are otherwise barred from marrying in Maryland on the basis that their marriage is contrary to public policy such as on account of their age or familial connection, and that the law should treat same sex marriage in a similar fashion.

Interestingly, Maryland has approved same sex marriage effective in January, 2013 so it is likely the Appeals Court will be accepting of this argument.

In the meantime, more and more pockets of the country are legally addressing the unfairness with which same-sex couples are denied divorce. Just last month in Columbus, Ohio, Judge Donald Cox granted a divorce to a gay couple who married in New York in 2011. Despite opposition from the Ohio Campaign to Protect Marriage (which promptly filed a legal brief to get the divorce revoked), Judge Cox’s decision will hopefully influence future court rulings in a state where same-sex marriage and civil unions are banned.

The General Assembly of Rhode Island is also setting a positive example by considering legislation that would grant divorces to same-sex couples. Introduced by Senator Erin P. Lynch in 2009, Bill 271 would require that RI courts acknowledge same-sex marriages for the purpose of granting divorces. Passage of the bill is still pending.

And, the District of Columbia just passed legislation allowing same-sex couples who were married in D.C. to be divorced in D.C., regardless of residency.

California now also permits gay couples who were married in California to use the Courts of California to divorce if they are living in a state that refuses to dissolve their marriage.


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Ellen S. Fischer of the Law Office of Ellen S. Fischer has been working closely with individuals and families throughout the greater Philadelphia region for more than 20 years. Ellen received her Bachelor of Arts degree from Temple University and returned to earn a Juris Doctor degree from the Temple University School of Law. Ellen serves on a number of leadership committees and is a member of Gay and Lesbian Lawyers of Philadelphia (GALLOP). In addition to LGBTQ services, Ellen's practice areas are family law and personal injury.