May 28, 2012

Port v. Cowan -- an update

by Philip Yabut in current events, divorce, gay marriage and divorce

In a previous post I briefly wrote about the saga of Port v. Cowan, a same-sex divorce case that was headed to Maryland's highest court. The parties wed in a civil ceremony in California during the brief time same-sex unions were legal in that state, but their marriage subsequently went sour and they sought a divorce in Prince George's County, Maryland. The circuit court dismissed their claim, ruling that the state did not recognize their marriage as legal. On May 18, 2012, the Maryland Court of Appeals issued its decision, which overruled the circuit court's ruling and instructed it to grant the parties' divorce. The rationale is that Maryland courts only fail to recognize otherwise valid out-of-state marriages if they're contrary to public policy, and they did not consider gay marriage as such. The decision was hailed as a victory by gay rights advocates, and comes as Maryland faces an Election Day referendum on a same-sex marriage law passed by the state legislature and signed by Gov. Martin O'Malley.

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April 27, 2012

Same-sex divorce in DC -- it's easier than you think

by Philip Yabut in gay marriage and divorce

At the time of this writing, only eight states and DC allow same-sex marriage. The corollary is that if a state does not recognize gay marriage, it (usually -- more on that in another post) will not help a same-sex couple get a divorce, and with so few gay-friendly jurisdictions it could be difficult to end a union that ends badly.

Fortunately, if you got married in DC, you're in luck. In March, the DC Council unanimously approved a bill that clears the way for routine gay divorce. The law goes a bit further by allowing a divorce even if one or neither party lives in DC, just as long as the marriage happened in the District and the parties live in a jurisdiction that will not let them get a legal divorce. And, finally, for legal gay marriages not performed in DC, the law allows for the a six-month residency requirement, tying it with Vermont for the shortest in the country.

The result of this law is that in DC gay couples seeking a divorce may now go through the normal process as their opposite-sex neighbors. For the full text of the law, click here.

April 18, 2012

A Custody Fight Like No Other

by Philip Yabut in child support, gay marriage and divorce

As I mentioned in a previous post, at this point in our history same-sex divorce can be a very difficult proposition, especially in a jurisdiction that does not recognize gay marriage. Complicating matters are potential ancillary issues that are routine (or at least as "routine" as they could be, as there are laws governing them already) in opposite-sex marriages.

Take the case of Lisa Miller and Janet Jenkins, a lesbian couple who obtained a civil union in Vermont in 2000. The couple had a child, born to Miller, in 2002, but their relationship ended in 2003. After the dissolution of the civil union, a Vermont court awarded physical custody of the child to Jenkins, with visitation rights to Miller. Miller then fled to Virginia to avoid complying with the court order. She filed suit in Frederick County (Va.) Circuit Court, which awarded her sole custody as the birth mother based on Virginia's 2004 Marriage Affirmation Act. Meanwhile, a Vermont court found Miller in contempt and awarded Jenkins full parental rights, which the Vermont Supreme Court upheld. Jenkins, in turn, appealed to the Virginia Court of Appeals, which overruled that the circuit court, saying that the trial judge should not have ruled on custody at all, citing the federal Parental Kidnapping Prevention Act declaring that once custody is established in one state, a court in another state must give "full faith and credit" to the original court's ruling and thus cannot assume jurisdiction.

The important result from this sad case is that Virginia must honor another state's custody order, even if it is contrary to Virginia statutes, because federal law prevents persons unhappy with child custody orders from seeking favorable rulings in other states. This is a measure of good news, as Virginia cannot apply its own laws restricting same-sex marriage to existing child custody orders in other states. In the big picture, it shows that at least in the subject of child custody there is uniformity in enforcement of laws.

For more information I used for this blog on Miller v. Jenkins, click on the following links:

The American Civil Liberties Union's (ACLU) summary of Miller v. Jenkins ACLU Virginia's summary The Virginia Court of Appeals' opinion for Miller-Jenkins v. Miller-Jenkins Lambda Legal's summary of Miller v. Jenkins "The Strange, Sad Case of Miller-Jenkins v. Miller-Jenkins" (Salon.com, December 23, 2009)

April 10, 2012

When Breaking Up Is REALLY Hard to Do -- An Article on Same-Sex Divorce

by Philip Yabut in current events, divorce, gay marriage and divorce

Divorce is a process that is almost, if not just, as old as marriage itself. In the U.S., it was once fairly difficult to end a marriage, but once states began formalizing uncontested divorce procedures it became a lot easier and less expensive. Of course, that is true only for marriages between a man and a woman.

The Washington Post's Ellen McCarthy writes:

"[Port v. Cowan] represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. The laws are constantly evolving and election-year politics promise to heighten the already divisive passion surrounding the issue."

Port v. Cowan (link leads to a video of oral argument in the Maryland Court of Appeals), nicely summarized by The Baltimore Sun, is a divorce that would be a matter of a few minutes in court followed by a one-line declaration by a judge and a short decree declaring the parties are separated by law. But for gay couples that go sour, the country's current patchwork of same-sex marriage and divorce laws makes something that most people take for granted a more difficult proposition.

If you live in a state that has already legalized same-sex marriage and/or recognizes such unions from other states, divorce is as simple as following the rules. However, if you don't live in such a state and you need to separate from your spouse, the best way to protect your rights is to sign a binding property settlement agreement with your spouse, as well as rewriting your will and creating new beneficiary arrangements for insurance purposes, and that's just for starters. Simply put, you would need to manually sever as many ties as you can with your spouse with separate instruments to gain the same effect that a divorce does automatically.

It is difficult enough, especially during an emotionally stressful time like a separation, to have to deal with jumping through legal hoops. But it is better to safeguard your rights. And maybe someday the law will catch up so all of it will become unnecessary.