What Same-Sex Couples Should Know About Divorce

Same-sex couples across Maryland have had the freedom to marry since January 1, 2013. Two years later, the landmark Supreme Court case of Obergefell v. Hodges legalized same sex marriage across the country, allowing same-sex couples to unify their love just as any other heterosexual couple would. However, while monumental movements have been made regarding same-sex marriage, there have not been as many legal progresses regarding same-sex divorce. Property division, alimony and child custody for same-sex couples are just a few areas that may prove to be more complex during the divorce process.

Here, the divorce and child custody attorneys at Rodier Family Law discuss same-sex divorce in Maryland, the complexities of the current legal system, and how this can impact your family as you navigate your unique divorce and custody case.  


One area that may prove to be a challenge for same-sex couples seeking divorce is the decision of alimony. Alimony is the financial support awarded to one party after a divorce to help them maintain financial stability. There are many factors that go into establishing the amount of spousal support given, including the current financial stability and health of each party. One factor that becomes more complex in same-sex divorce cases is the length of marriage. For example, if a heterosexual couple has been married for 30 years and raised children together, with one parent being the caretaker, spousal support may be substantial seeing as the caretaker has been financially dependent for three decades. In the same respect, a same-sex couple could be in an identical situation, yet since their marriage was not seen in the eyes of the law for nearly that length of time, it may complicate how alimony should be awarded. While it will vary from case to case, having a knowledgeable divorce attorney is a huge benefit in helping you understand the legality behind this decision, and how you can work toward a beneficial outcome for both parties. 

Custody Can Become Complex Without Second-Parent Adoption

While the divorce process in itself can be taxing for same-sex couples, adding custody to the mix can become an even lengthier process. In many divorce cases for heterosexual couples with children born to them (biologically related to both parents) during the marriage, parents have constitutional rights to parent their children. However, if a child was born prior to marriage in a same-sex couple relationship, and the non-biological parent hasn’t filed for second-parent adoption, legal issues may arise. Second-parent adoption occurs when one biological parent’s partner is seeking to establish a parent-child relationship legally. If this has not occurred, the non-biological parent does not have any inherent rights to the child in the eyes of the law, which in turn leads to establishing that parent as a de-facto parent. 

A de-facto parent is an individual who has assumed the day-to-day responsibilities of caring for a child as well as providing love, affection and support. De facto parent status is usually determined based on four areas, established through the Maryland case of Conover v. Conover. This case showed the following must be present for de-facto parenting status to be granted:

  • The biological parent must have fostered or consented to the continuation of a parent-child relationship with the non-biological parent, 
  • the non-biological parent has lived in the same household for an extended period of time, 
  • the non-biological parent has provided daily care and taken significant responsibility for areas of the child’s life including education and development willingly, 
  • and the non-biological parent has been in a parental role for an extended period, fostering a bond with the child. 

Additionally, a more recent case has further expanded the rights of de facto parents as of 2020, indicating that only one parent needs to consent to de facto status in order for the first prong of the test to be satisfied.  This could further expand rights in some cases, including same-sex cases, to include future same-sex step-parents and/or non-married partners. 

Same-Sex Couples May Face Disagreements in Property Division

Finally, when it comes to same-sex divorce, marital property can present challenges.  Maryland defines marital property generally as property earned, saved and/or acquired by either or both parties during the marriage, regardless of title, so long as the same is not categorically non-marital (i.e. inherited, gifted to one spouse by third party, excluded by valid agreement, directly traceable to any non-marital source, subject to certain exceptions). This legal reality can clash with the day-to-day reality for many same-sex couples who have shared their lives for many years and amassed property in one or both parties’ names prior to the official date of their marriage. For example, if a heterosexual couple put finances toward their mortgage equally, this would in most circumstances be considered in court from the time that they were married. Similar to alimony, the date at which a same-sex couple was seen as legally married may make it more difficult to divide property. If a same-sex couple has been paying off a mortgage for 20 years, but they have only been legally married for 5, the party whose name is not on the deed may ultimately have no legal recourse in establishing possession, even though they may have put a substantial amount of money behind it.  It is important to investigate and consider other areas of the law, outside of the marital property and domestic laws, in order to protect one’s interests.

Seek Divorce Assistance With Maryland Divorce and Custody Attorneys at Rodier Family Law

At Rodier Family Law, our team has extensive experience navigating the complexities of Maryland divorce law. It is our mission to guide you through the process with care. To learn how our team can assist you, contact us today by clicking here: https://www.rodierfamilylaw.com/contact-us/