They took a vacation from their home in Washington D.C. to a San Francisco courthouse to get married since California allows same-sex marriages.
“We were just like every other couple, we really thought that this was it,” said Port, 30, who works as a counselor at a special education school. “We had nothing to worry about. We were just focused on marriage and future.”
They had no idea that one day their marriage would fall apart, and that their divorce would lead to a radical change in the legal status of same-sex marriages in Maryland.
Same-sex couples can currently marry in 6 states and the District of Columbia, and there’s no residency requirement to marry. That means that couples who live outside of those states can just pop in for a day to get married and then go home.
But if a marriage should fall apart in a state that doesn’t recognize the couple’s legal status in the first place, that’s when things get complicated.
Some states that do not allow same-sex marriages to be performed also do not grant divorces for same-sex marriages that occurred outside of the state’s borders. It’s a tricky situation when a couple wants to dissolve their same-sex marriage, and neither spouse is a resident of a state that recognizes their marriage as legal and valid.
To satisfy the residency requirements, under these circumstances, you’d have to live in a state for 6 months to 2 years — depending on local laws — in order to get a divorce from a same-sex partner, said Susan Sommer, director of constitutional litigation at Lambda Legal, which represented Cowan.
And in the case of Port and Cowan, a Maryland judge ruled in 2010 that the state’s constitution could not recognize their divorce, and denied their filing. They were both Maryland residents when they sought to dissolve their marriage, and Maryland is not a state that recognizes same-sex marriage.
It’s a predicament that lawyers call being “wed-locked.”
You might think that, if you live in a state that doesn’t recognize your marriage, there’s no need for a formal divorce.
But it becomes important because, if one spouse gives birth to a child in the state of the marriage, the other spouse is presumed to be a parent under the law. It also means that neither spouse can marry or enter into a civil union with a new partner, or else they would be opening themselves to bigamy charges.
Unfortunately, Jessica Port, 30, feared being emotionally and financially tied to her partner for the rest of her life, and wanted to move forward. She had also bought a house after they broke up, and worried about her assets and life insurance policy. And if she or her former partner wanted to have children, they could become embroiled in custody issues.
There is something ironic about a state that doesn’t allow same-sex marriage to also not allow the dissolution of a same-sex marriage, lawyers said. “Some state courts say: We do not have the power under state law to render a decision about a decision we’re not allowed to recognize.”
State laws are rapidly evolving with respect to same-sex divorce, but there’s no universal rule on it. Especially if the couple resides in a state that doesn’t recognize gay marriage, it’s hard to know what to do with the fact that a marriage was never dissolved.
And since same-sex marriages are not recognized on a federal level, a lot of retirement packages can’t be divided up easily in a divorce, which creates financial issues that wouldn’t exist for heterosexual couples. The tax ramifications may be completely different for a same-sex couple looking to legally split.
With all of this complexity, many same-sex couples find themselves in legal quandaries such as this one, which one would not expect in the course of breaking up a heterosexual marriage.
Jessica Port and Virginia Cowan took their case to the Maryland Supreme Court where the Justices determined it was unconstitutional not to allow same-sex couples to divorce. To date, they are still waiting for a lower Maryland court to reverse the decision to not dissolve their marriage.