Every year, more states and countries allow same-sex couples to marry. But in the states that continue to bar same-sex couples from marriage, a new legal question is emerging: will the state permit married same-sex couples to divorce, even though it will not allow them to marry?
If not, these couples are stuck in a terrible legal limbo. They are legally married, and their mar- riages are recognized in many places. But they cannot get a divorce where they live, and they cannot file for divorce in another state because they are not residents there. As a result, these couples are “wedlocked”—they are locked into a legally binding marriage with no way to divorce.
NCLR has been working hard to come up with legal solutions to help these couples. In 2011, NCLR worked with California legislators to change the residence requirement for filing for divorce in California. The old law required that at least one spouse must have lived in California for six months before filing for divorce here. The new law allows couples who married in California to divorce in California if the couple lives in
a state that will not permit them to divorce even if neither spouse is a current California resident.
In 2011, two members of NCLR’s National Family Law Advisory Council, Michele Zavos and Professor Nancy Polikoff, drafted similar legisla- tion for the District of Columbia. That legislation went into effect May 31. Vermont passed similar legislation, which went into effect on July 1.
NCLR has also been helping family law attorneys across the country develop the best legal arguments to help couples facing this stressful dilemma. In some states, trial courts are
quietly granting divorces or using other legal mechanisms to dissolve these marriages. In other states, appellate courts—which have the power to define the law across an entire state—are ruling on this issue.
On May 18, 2012, in an NCLR case, Maryland’s highest state court ruled that Maryland will recognize the marriages of same-sex couples who married in other places, even though they cannot marry in Maryland. The couple in the case—Jessica Port and Virginia Cowan—married in California in 2008. In 2010, after they decided their marriage had come to an end, Jessica filed for divorce in Prince George County, Maryland.
The trial judge found that Jessica and Virginia met all of the legal requirements to divorce. But the judge denied the divorce, saying that “to recognize the alleged marriage would be contrary to the public policy of the state of Maryland.”
NCLR and co-counsel, Maryland attorneys Michele Zavos and Eva Juncker of the Zavos Law Group, represented Jessica in appealing the decision. We argued that Maryland has always recognized marriages from other states, regardless of whether the couple could have married in Maryland, and asked the Court to apply the same rule to the marriages of same-sex couples. Lambda Legal and Maryland attorneys Mark Scurti and Leslie Stellman of Hodes, Pessin and Katz, represented the other spouse.
On May 18, 2012, in a unanimous decision, the Maryland high court adopted our arguments and ruled that Maryland must recognize these marriages. We are thrilled by this decision, which means not only that married same-sex couples in Maryland who have broken up will no longer be in legal limbo, but also that Maryland will recognize marriages between same-sex spouses for all purposes. Especially because same-sex couples can marry in the District of Columbia, which is right next door to Maryland, this is a huge step forward.
NCLR is proud to be on the forefront of family law issues and to partner with some of the most creative, visionary, and resourceful private attorneys in the country. If you are an individual or an attorney seeking a divorce in a state that does not permit same-sex couples to marry, please let us know! We will be sure you have the most up-to-date information on legal developments on this important new issue.