July 5, 2012
Authored by: Caitlin Murphy, Jordan Ware and Mary Ann Mancini
In a recent decision, Port v. Cowan, 2012 Md. Lexis 283 (May 18, 2012), the Maryland Court of Appeals held that Maryland courts will recognize a valid same-sex marriage entered into in another state for purposes of granting a divorce to such same-sex spouses who otherwise meet the criteria for divorce under the laws of Maryland. In support of its unanimous decision, the court cited the the general rule that Maryland courts will honor marriages entered into in another state, as long as the marriage was valid in the state where it was performed. Further, that court determined that recognition of a validly-performed out-of-state same-sex marriage is not repugnant to, but is actually consistent with Maryland public policy, in light of several currently enacted Maryland laws that protect and support same-sex couples.
As discussed in a recent article on CNN.com, Port v. Cowan highlights the challenge faced by same-sex spouses who enter into a valid marriage in a state that recognizes same-sex marriage, but thereafter relocate to a state that doesn’t recognize same-sex marriages and are unable to get a divorce. In fact, in this case the Maryland Court of Appeals issued a writ of certiorari (which means it agreed to hear the case) on its own initiative only after a Maryland circuit court had denied the couple’s request for a “no contest” divorce on the grounds that the subject marriage was “not valid” and “contrary to the public policy of Maryland.”
Currently, same-sex marriage cannot be validly performed in Maryland. Although the governor of Maryland approved a law in March 2012 that legalizes same-sex marriages performed in Maryland (the Civil Marriage Protection Act of 2012), the law does not go into effect until January of 2013. Further, opponents of the law have met the signature threshold to challenge the law and and ensure that the issue will appear on the November 2013 ballot for a referendum.
To read more about planning considerations for same-sex couples, click here.