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Marriage Equality in Maryland

Maryland law has recognized same-sex marriages since January 1, 2013.

Marriage Equality became law across the United States on June 26, 2015, when Supreme Court Justice Anthony Kennedy ruled that individual states cannot ban same-sex marriage. Justice Kennedy opined that same sex couples must have “equal dignity in the eyes of the law. The Constitution grants them that right.”

The Supreme Court ruling has simplified many divorces involving same sex couples. Prior to the Supreme Court ruling, couples who were married in a state recognizing marriage equality may have found themselves in marital purgatory if one party or both moved into states where marriage equality was not recognized. The change of law has ended the purgatories for many, yet some gaps in “fairness” remain and may remain for several years.

Specifically, a now-married couple may have resided together and conducted themselves as a married couple for several years prior to the adoption of the marriage equality law. Many same-sex couples were essentially celebrating silver anniversaries of their “togetherness” and yet are “newlyweds” from the perspective of Maryland divorce courts relating to specific issues.

For example, for Alimony and/or division of property in Maryland, length of the marriage is an important factor. Assets acquired prior to the marriage which are titled in one party’s name may be deemed to be non-marital in whole or in part even if the parties were together and perhaps jointly funding the non-marital asset, directly or indirectly. Of course the parties always had the right to jointly title certain property such as a home, to avoid an unfair result upon break-up of the couple. However, in the case of qualified retirement assets, which are often a couple’s most substantial asset, joint titling was never an option by federal law. Therefore, with qualified retirement assets accumulated over a couple’s long-term “marriage-like” relationship, the owning party may not have to distribute any portion of the funds proven to be acquired prior to the legal marriage; which in Maryland could not have occurred prior to 2013. Since there was and is no way to jointly title a 401(K), pension or other qualified retirement account except in one party’s name, the only way the parties would have a similar division upon divorce during a short-term marriage (despite long-term relationship) would be if they had entered into a prior, valid domestic partnership agreement or similar contractual arrangement. Arguably the same-sex couple could have recognized the virtue of and ability to solidify such contractual rights, not unlike heterosexual couples in Maryland who live jointly but do not marry. This is because “common law” marriage (marriage based on long term marriage-like relationships) is not recognized in Maryland, unless the “common law” marriage was first recognized in a sister state.

The length of marriage is also a factor relating to qualifying to receive social security benefits based on your spouse’s earnings. One needs to have been married to one’s spouse for a certain term of years (among other factors) to qualify to have an election to obtain benefits based on a spouse’s earnings.

Child custody issues may arise in same-sex marriages if children were born prior to the marriage. In Maryland, a child born to her biological mother during her marriage to another woman may name the other woman as the child’s other mother on the birth certificate, solidifying parental rights and obligations for the non-biological mother. For male same-sex relationships, one or both prospective parents may have to adopt the Child if neither is the biological father. Until 2016 in Maryland, unless there was a legal adoption by the non-biological parent, or if only one non-biological parent had gotten a legal adoption, a non-biological party who did not legally adopt the Child in most cases had inferior rights to the biological or adoptive parent party. However, in apparent response to the realities of children having been raised by a non-biological “parent-like” party the recent case of Conover v. Conover, 450 Md. 51 (2016) has attempted to rectify that situation by recognizing the “de facto” parent.

See: Conover v Conover Maryland’s Recognition of De Facto Parent Status

In the Conover case, the Maryland Court ruled that non-biological or non-adoptive parent-like parties can seek custody or visitation of that child as a “de facto” parent if they meet certain qualifications. This is a change to the legal precedent, previously rejecting the “de facto” parental rights to grandparents, step-parents and the like except in cases of parental unfitness or the existence of other exceptional circumstances. The Conover case changed this precedent of Maryland law, holding that “de facto” parents may seek custody or access without proving parental unfitness or exceptional circumstances.

The Maryland Court of Appeals has held that a “de facto parent” may have rights when

  1. The biological or adoptive parent consented to and fostered a “parent-like” relationship between the child and “de facto” parent;
  2. The Child and the “de facto” parent lived together in the same household;
  3. The “de facto” parent acted like a parent, took on parental responsibilities for the Child’s care, education and development and made financial contributions to the Child’s support without expectation of compensation;
  4. The “de facto” parent acted in his or her parental role for a sufficient period of time to create a parent-like bond with the child, which is similar to the bond of the biological or adoptive parent.

See also: Parentage Without Gender by Joanna L. Grossman

For a great many issues arising from separation and divorce, marriage equality simply means equality. With these few but substantial exceptions, the negotiations are now substantially similar to marriages between men and women. However, same-sex marriages may suffer growing pains as Maryland law catches up with marriage equality. Through the passage of laws by courts and the legislature and/or by the passage of time, in our future, there may be very few differences.

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