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California couple denied out of state divorce

On Behalf of | Apr 20, 2012 | Property Division |

In a divorce, the terms of the division of property, and child custody and support issues can aid in mapping out a couple’s split. A legal divorce obligates each divorcing spouse to abide by terms of a divorce decree. If a spouse defaults on any aspect of the divorce agreement, the injured spouse has a remedy in law that requires the defaulting spouse to comply.

In California, where same-sex marriage is legal, same-sex couples can obtain divorces alongside the rest of the state’s residents. Divorcing same-sex couple can make a final determination about property and asset division, and can rely on the law to ensure each spouse upholds his or her end of the bargain.

If a California same-sex couple moves to a state that does not recognize same-sex marriage, they may not be able to divide their marital property under force of law by obtaining a same-sex divorce in the new state. Currently, the Maryland Court of Appeals is debating this very issue.

Two women, married in San Francisco, attempted to obtain a divorce in Maryland, their home state, in 2010. However, the judge refused to grant the divorce, reasoning that because same-sex marriage is not legal in Maryland, neither is same-sex divorce. While Maryland has since passed legislation to legalize same-sex marriage, the law will not be effective until January 2013. There is also a chance the law could be repealed.

While the women could still obtain a divorce in a state that recognizes same-sex marriage, they argue that the judge’s decision is bigger than them. If they are allowed to divorce in Maryland, all same-sex couples may have that right.

Although the legal divorce the Maryland women seek affords individuals the protection and certainty of the law, the process can nonetheless be extremely complicated. California, a no-fault divorce state, requires each spouse to disclose all assets they own upfront. The court will use this pool of assets to divide property. An experienced advocate will investigate properly to ensure that all assets are disclosed to the court. While divorce is never a welcomed experience, it should be a fair one.

Source: United Press International, “MD appeals court weighs same-sex divorce,” author unknown, April 10, 2012


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John T. Chamberlin, Attorney at Law
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