January 5, 2013

Same-sex divorce raises new legal issues

By Eric Russell erussell@pressherald.com
Staff Writer

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The answer matters, Neal said, because of how spousal benefits are calculated. There are no concrete guidelines regarding spousal support in Maine, but the law does establish the presumption that spousal support will not be considered for any marriage lasting fewer than 10 years.

But, as Bell pointed out, there are likely many couples who have been together for far longer and who would argue that they would have been married for much of that time if the law had allowed it.

Prior to the passage of Maine's same-sex marriage law, Maine couples who were married legally in another state could not get divorced in Maine because their marriage was not recognized. Neal said that phenomenon has come up often in her practice and has been well covered in other states, too.

One Maryland couple, Jessica Port and Virginia Cowan, endured a lengthy court battle over the dissolution of their marriage. They were married in California in 2008, when same-sex marriage was briefly legal there. But when they decided to divorce, they faced a problem: Maryland didn't recognize their marriage in the first place, so they could not legally get divorced there. Some lawyers have called the phenomenon being "wed-locked."

"Divorce depends on where you live, not where you got married," said Cheong.

Being "wed-locked" may not be a problem for Maine residents anymore, but now the inverse is true: If a same-sex couple gets married in Maine and then moves to another state that does not allow or recognize same-sex marriage, they likely would have to return to Maine to obtain their divorce or to another state that recognizes same-sex marriage. In some cases, they would have to reestablish residency before a court would grant the divorce.

Child custody could also be a problem for divorcing same-sex couples. Although married parents have inherent rights when it comes to their children, many experts recommend that same-sex couples still officially adopt any children to eliminate any federal questions tied to DOMA. Additionally, child support normally is not taxed or deductible for heterosexual couples but no such guarantee exists for same-sex couples.

Family law attorneys said the U.S. Supreme Court is likely to resolve the Defense of Marriage Act with a decision that could come this summer, which may provide clarity on some of the issues. Until same-sex marriage is permitted in every state, though, they still expect some disparity.

"Couples should educate themselves as much as possible," Neal said.

Staff Writer Eric Russell can be contacted at 791-6344 or at:

erussell@pressherald.com

Twitter: @PPHEricRussell

 

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