Since 2015, same-sex marriage has been legal in our state and throughout the United States. However, it has not completely made divorce equality the law in every state. Some states still have barriers to a same-sex divorce, and even in Maryland, same-sex couples may find judges leery or hesitant to grant a divorce. Even if you get a judge who does not pose a barrier to your divorce, you may have other complications with the child custody and property division process.
Child custody process
Because same-sex couples cannot have a child by the “traditional” method, they are forced into alternative arrangements. This can include adoption, surrogacy, artificial insemination, etc. In our country’s history, there has never been more options for same-sex couples to make their family. However, with each creative option comes its own downsides in the divorce/child custody process.
Some adoption providers will not allow same-sex couples to adopt, which forces the couple to go through the process without their partner. In other situations, one spouse donates their DNA to the surrogate to give the child a familial relationship, or one spouse carries the baby themselves. These are all cases in which one spouse could be given preferential treatment by the family law judge because the law still gives such treatment to biological connections first, and then, legal adoptions second.
Property division process
For all Bel Air, Maryland, couples, the property division process is legally treated the same, where the court divides up the marital estate (all assets bought or accumulated postmarriage). Then, the property that was brought into the marriage leaves the marriage with the person who brought that property in (unless, there was some co-mingling). This can be an issue for same-sex couples who have been together for decades prior to marriage.
For these couples, the issues arise in how the property was titled prior to the marriage. Homes, cars, investments, etc., can end up disproportionately in the hands of one spouse because they were purchased or largely invested prior to the marriage. Even the family home could end up in the hands of the spouse on title.
Luckily for Upper Marlboro, Maryland, same-sex couples, these are all issues that can be resolved now. Through co-habitation agreements, postnuptial agreements and other contracts between the spouses crafted now, couples can avoid the chaos that could result if the courts treat same-sex couples differently.