Once again the ability for same-sex couples to divorce makes the news. Last week, the Maryland Court of Appeal held that two women married in California could divorce in Maryland, thus establishing that Maryland will recognize marriages between same-sex couples married outside of Maryland. This week, a new statute going into effect in the District of Columbia allows couples that have been married in the District to divorce in the District if the couple is unable to divorce because both of them live in jurisdictions where their marriage is not recognized.
The District, like all almost all jurisdictions, has a residency requirement for couples to be eligible to divorce here. This law creates an exception to that requirement so that couples who both live where their marriage is not recognized, but were married in D.C., will be able to divorce here. Since the District has no residency requirement to get married here, many couples have come from around the country to marry here, but, like opposite-sex couples, 50 percent of those marriages will break up.
Until now, for those couples who both live in states that do not recognize our marriages, it has been impossible to divorce without one member of the couple moving to a jurisdiction that does. Now, there is a rebuttable presumption in this new law that any state with laws prohibiting our marriages will not allow same-sex couples to divorce in that state. So, for example, Virginia certainly qualifies. So does North Carolina. But, because of the decision in Port v. Cowan last week, we can definitely take Maryland off that list.
However, given other legal requirements for jurisdiction, couples seeking such a divorce in D.C. are best advised to negotiate an agreement covering any issues arising out of their marriage, such as division of marital property, award of alimony and spousal support, child custody, support, and visitation, if there are children of the marriage. Most couples that seek a divorce settle these issues before a divorce is actually granted in any case.
These agreements usually take the form of a voluntary separation and property settlement agreement that is submitted to the Court with the request for divorce. In order to be divorced in the District the couple must have been separated for at least six months with no marital relations, and in this instance the separation must be mutual and voluntary. In an uncontested divorce, the couple files a complaint and answer at the same time and tells the Court that they have resolved all issues from their marriage. A 10-minute hearing is usually scheduled within about six weeks, and only one party has to appear.
After the divorce is granted, all jurisdictions should recognize it for all purposes, although I never underestimate the power of homophobia to affect our legal rights. Although not perfect, the new D.C. statute is a very important development allowing some married couples to end a chapter in their lives and move forward to the next.
Michele Zavos is a principal in the Zavos Juncker Law Group, PLLC, which practices family law in all three local jurisdictions. She is a long-time lesbian activist attorney and was counsel to Jessica Port in Port v. Cowan. She aided in the passage of the new D.C. divorce statute.