Same-sex divorce case heads to top Maryland court

Jessica Port and Virginia Anne Cowan had settled on San Francisco as the place to turn their two-year engagement into a marriage, taking advantage of an opportunity in 2008 for same-sex couples to wed there.

They flew from their home in the District of Columbia, had a courthouse ceremony and played tourist in the city for a few days.

Two years later, the relationship in tatters, Port filed for divorce in Maryland, where she had bought a home. The women had already divided their belongings, didn't hire lawyers, and they remained on terms so amicable that "we sat right next to each other at the divorce hearing," Port recalled.

A year and a half after that, they're still not divorced, adrift in legal limbo. A Prince George's County judge refused their request for an uncontested divorce, and their case is wending its way through the courts.

For same-sex couples, calling it quits can be harder than saying "I do."

While they are gaining the right to marry in an increasing number of states that have become magnets for same-sex nuptials, the couples are finding that divorce is often uncharted legal territory.

About 40 states do not recognize same-sex marriages, though some allow civil unions or domestic partnerships. Legally tethered, estranged couples may be able to make health care decisions for each other. And neither can remarry without risk of being considered bigamists.

"Am I ever going to get divorced? How am I going to live my life without this piece of paper?" said Port, a 29-year-old counselor for at-risk high school students who has spent sleepless nights pondering the problem. "I want to have a home, I want to have children."

While Gov. Martin O'Malley has signed legislation to legalize same-sex marriage in Maryland, the law won't take effect until 2013, and only if it survives an anticipated referendum on the issue in November's election.

Judge A. Michael Chapdelaine, who denied Port's and Cowan's divorce petition, found that the women's marriage in California isn't valid in Maryland, so they can't divorce in Maryland. Lawyers who follow same-sex legal issues say another gay divorce also has been denied in the state.

The Court of Appeals, Maryland's highest court, is scheduled to hear the case of Port and Cowan next month, and a ruling could set a precedent that all judges must follow. The ruling is expected to have broad implications, as marriage affects so many aspects of life, from pensions to property ownership.

"The only thing worse in my mind than not being able to get married is not being able to get divorced," said California lawyer Frederick Hertz, whose most recent book on same-sex unions is "Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions."

Hertz estimates that about half of all same-sex nuptials are performed for out-of-state couples.

A few same-sex divorces have been granted in Maryland. They include one in the same courthouse where Port and Cowan were turned down. In Baltimore, one judge granted a divorce, while another city judge denied a same-sex couple using Chapdelaine's reasoning, according to lawyers who are familiar with the cases. And a Calvert County judge recently signed a divorce for a same-sex couple, said E. Burton Hathaway III, an Annapolis attorney representing one of the women.

"This is a county-by-county, jurisdiction-by-jurisdiction, judge-by-judge decision," said Michele Zavos, a Silver Spring attorney who is representing Port in the appeal.

"We think what needs to happen is that the Court of Appeals needs to recognize these marriages," Zavos said.

The legal landscape can be confusing. Maryland Attorney General Douglas F. Gansler, who has advocated for approval of same-sex marriage, issued an advisory opinion in 2010 saying that Maryland should recognize same-sex marriages performed in other states. But while the opinion meant that state agencies extended to same-sex couples benefits that heterosexual married couples enjoy, it did not hold sway over courts.

"Divorce is one of the areas that brings to light how there is no alternative to recognizing out-of-state same-sex marriages," Gansler said.

Gansler predicted that the Court of Appeals would recognize same-sex marriages performed elsewhere, as the court generally recognizes marriages in other states — including some that could not take place in Maryland, such as common-law marriages, which are not recognized in the state.

"An uncle and a niece. Maryland makes it a crime — literally a crime — to enter into an uncle-niece marriage. It's incest. But they recognize it from other states," said Susan Sommer, director of constitutional litigation at Lambda Legal Defense and Education Fund and one of Cowan's lawyers.

Opponents of same-sex marriage say gay couples should have expected trouble getting divorced, given that they had to leave Maryland to wed.

"Judges are in a weird spot. Where in the law is it?" said Del. Michael J. Hough, a Western Maryland Republican who opposes same-sex marriage.

He blamed the confused situation in Maryland on Gansler's opinion. "It was purely and totally political. It's no wonder that it's causing problems in Maryland's law," he said. "We never passed a law on these out-of-state same-sex couples."

Exactly how many married same-sex couples are in Maryland is unclear. Census figures don't capture that number. However, in the 2010 census, 2,321 same-sex couples in Maryland identified themselves as spouses — but that doesn't necessarily mean they're legally married.

Difficulties over divorce led California to adopt a measure last year exempting same-sex couples, who traveled there to wed during the five-month window when it was legal, from a requirement that one or both parties must be a state resident to file for divorce. This month, the District of Columbia Council approved a similar bill. It has yet to clear the mayor's office and Congress.

The situation isn't lost on gay and lesbian Marylanders.

"It's absurd," said Sande Eastwood of Baltimore, whose divorce from her same-sex spouse was approved last fall by a Baltimore judge. "You don't want us to marry. But you don't want us to divorce when we do get married?"

Eastwood and Laura Bamburak wed in the District of Columbia in 2010 when same-sex marriage was legalized, which was four years after they'd had a 150-guest commitment ceremony and reception in Baltimore. If the divorce had been denied, both women said they aren't sure what they would have done.

"I guess we would have had to stay in limbo, unless one of us wanted to sneakily try to get an address in D.C.," Bamburak said.

Port said her inability to get divorced has cast an emotional cloud. "How do you move forward in a new relationship when you are legally married to someone else?"

Because marriage laws change from state to state and federal law does not obligate states to recognize same-sex marriages performed elsewhere, Port could marry a man, but not a woman, in Virginia, for example, which does not recognize same-sex marriages. If she wed someone else in New York, which does recognize gay unions, she could be considered a bigamist.

Moreover, because Maryland state agencies do recognize same-sex marriages, not being able to divorce creates even more conundrums, said Mark Scurti, a Towson lawyer representing Cowan. An estranged same-sex spouse of a Maryland state employee, for instance, remains eligible for spousal health benefits, and if that spouse dies, death benefits, he said.

Edward Derenberger, a lawyer in Glen Burnie who represented a woman in a same-sex divorce granted a year and a half ago in Anne Arundel County, said he doesn't know what would have happened if the judge had denied it. The couple had married in Massachusetts; only a person who has lived in that state for a year can file for divorce there.

"The safest scenario would have been to go back to Massachusetts and establish a residency," he said.

On top of state issues come federal ones. Federal law defines marriage as between a man and a woman, so same-sex couples face a financial minefield at the federal level, lawyers say. They can't collect on the federal pension of a deceased same-sex spouse — that issue is now being litigated — and a division of assets must be delicately structured to avoid penalties that do not apply to married heterosexual couples.

And as laws evolve, the situations these couples face keep changing. "It's the fastest-moving social issue of our time," Gansler said.

Meanwhile, some same-sex Maryland couples are holding back on filing for divorce until there's a ruling in the Port-Cowan case.

If the court upholds the Prince George's County ruling, the same-sex divorces that have been granted would be thrown into doubt or nullified, Scurti said. Cowan is a District of Columbia resident, and so could pursue a divorce there, he said.

Several advocacy groups are supporting the couple's divorce effort, among them Equality Maryland, the American Civil Liberties Union of Maryland and the Maryland Black Family Alliance, as well as faculty members of the University of Baltimore and University of Maryland law schools. No briefs have been filed against allowing the divorce, according to the judiciary.

"Same-sex couples are just like any couples. We would like to have the same protections about joining our families," Lisa M. Polyak, Equality Maryland chair. "And if the time comes, to divorces. We don't see why we should be treated differently."

Hertz, the California lawyer who speaks frequently on same-sex marriage issues, said he tells gay couples: "Don't fall in love and get married, don't give birth, don't get rich and don't die in the next 10 years. Everything is changing.'"