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Same-sex marriage: New law, new clients, new questions

Family law attorneys in Maryland predict that the passage of a referendum legalizing same-sex marriage in the state earlier this month will be a boon to business, but are proceeding with caution as they navigate previously uncharted legal territory.

“Clearly, it will increase the client base,” said Jeffrey N. Greenblatt, an attorney at Joseph, Greenwald & Laake P.A. in Rockville. “The more people that get married, the more people that get divorced.”

Ferrier Stillman

Ferrier Stillman: "The law has changed significantly, but we’re not necessarily done."

The referendum, Question 6, appeared on Maryland’s Nov. 6 general election ballot. Voters approved the Civil Marriage Protection Act, which the General Assembly passed in February and which allows same-sex couples to obtain a civil marriage license.

As a result, same-sex couples will be able to legally marry in the state beginning on Jan. 1.

Greenblatt said that roughly 40 to 50 percent of heterosexual marriages end in divorce, and he expects the statistics will be the same for homosexual unions in Maryland.

He said that under Maryland law, the use and possession of a family home is normally awarded to the parent who receives custody.

“Historically, this is the mother, but if you have two male parents, who would be the ‘mom’?” Greenblatt said. “It’s an interesting twist.”

Anne Grover, an attorney at Brodsky Renehan Pearlstein Lastra & Bouquet Chtd. in Gaithersburg, said the legalization of same-sex marriage is going to result in an increase in the number of prenuptial and separation agreements, divorce proceedings and custody battles.

“It should have a good impact on increasing family law business in Maryland because the pool of potential clients will be greater,” Grover said.

In the short time since Question 6 passed, Pessin Katz Law P.A. has already heard from homosexual couples who want to discuss the pluses and minuses of getting married.

“Before they say, ‘I do,’ they need to think about the ramifications,” said Mark Scurti, an attorney at the firm. “One way to do this is to create a prenuptial agreement.”

Grover said a big question that needs to be resolved is who has custodial rights in same-sex relationships when one partner does not have a biological or legal relationship with the child.

“This issue will arise in the courts and go up to the Court of Appeals,” she predicted.

Grover cited Janice M. v Margaret K., a 2008 decision in which the Court of Appeals refused to allow a woman who had not legally adopted a child to receive visitation with the child over the legal parent’s objection.

“Now with same-sex marriage being legalized in Maryland, the non-legal parent may have greater or more custodial rights by being married,” she said.

Ferrier R. Stillman, a partner at Tydings & Rosenberg LLP in Baltimore, said that a same-sex couple who had been raising a child together all along and who now get married might lead to the type of case that could lead a court to overturn Janice M.

“The law has changed significantly, but we’re not necessarily done, and there are a lot of situations that could come up,” she said.

She said the legalization of same-sex marriage could lead to an increase in parenthood among same-sex couples. And that, she said, creates more potential for complicated legal situations.

“A same-sex couple cannot biologically have a child without the involvement of a third party,” she said. “Because of the biological necessity for a third party, there is a greater need for legal protection, especially for a non-biological parent.”

Even if Janice M. is reversed, though, Scurti said he would still advise same-sex couples to enter into a second-parent adoption agreement to be sure their rights will be recognized in other states.

“That’s a final judgment,” Scurti said.

He said that same-sex marriages will still have some challenges because of the federal limitations imposed under the Defense of Marriage Act.

“Family law practitioners have to proceed with caution because of the interplay of state law and federal law,” he said.

Dana McKee, an attorney at Brown, Goldstein & Levy LLP, said the legalization of same-sex marriages provides a huge opportunity for same-sex couples as to where they go for legal services.

“It’s an exciting time to be practicing family law,” McKee also said. “There are a few things that still need to be addressed.”

For instance, McKee wondered what happens if same-sex couples get married in Maryland but move somewhere else that doesn’t recognize same-sex marriages.

“Can you go back to Maryland for a divorce and waive the jurisdictional issue?” she asked. “There are still glitches in the law that will have to be addressed.”

McKee said she has not received calls from same-sex couples yet, but has gotten calls from some attorneys who are in same-sex relationships.

“They are saying, ‘Hallelujah,’” she said.