• Gay Marriage in Maryland - Interview with Attorney Linda Ostovitz
  • January 15, 2013
  • Law Firm: Seeger Weiss LLP - New York Office
  • The public uproar that resulted from Chik-fil-A CEO Dan Cathy’s open opposition to same-sex marriage is one of many indicators that show the topic of gay marriage remains an emotional one for the American people. While gay marriage has been and likely will remain to be a divisive topic, a number of developments in the past several years has indicated that a shift might be underway in terms of public opinion and public policy.

     In May of 2012, President Obama made history by becoming the first sitting president to express support for same-sex marriage, repeated polls have shown public support continues to increase and there are now six states that provide the right for gay couples to marry.

    Therefore, as the likelihood of a broader legal acceptance of same-sex marriage draws nearer, many lawyers are thinking ahead of the curve by trying to anticipate the legal ramifications of same-sex marriage, and one of the realities being most ignored is divorce law. Though it is understandable for gay rights advocates to remain hushed on the topic of divorce, especially since one can’t divorce without being married first, the lack of clarity surrounding the issue has left it up to the lawyers to figure the puzzle out.

    Linda Ostovitz is a family lawyer practicing in the Maryland law firm Silverstein & Ostovitz, and she is one of the lawyers who has tried to navigate the law concerning same sex couples. In September of 2011, Maryland officially ruled to recognize out of state same-sex couples, and in March 2012, a bill was passed to allow gay couples to marry starting in 2013 - if the referendum to overturn the bill doesn’t succeed.

    As such, Ostovitz has found herself practicing in a legal battleground, and has agreed to an interview to talk about the latest developments.

    Given the latest ruling, what is the current status of same sex marriage in Maryland?

    Linda Ostovitz: The Maryland Court of Appeals ruling on Port v. Cowan addresses divorce proceedings in Maryland following a valid same-sex marriage performed in another state. The ruling states that valid same-sex marriages will be recognized in the state of Maryland for the purpose of adjudicating a divorce complaint. That is the only issue so far. It’s important to note that no child issues were presented in this case.

    The Civil Marriage Protection Act, which recognizes same-sex marriage in the state of Maryland, was signed into law by Governor Martin O’Malley, but has been successfully challenged and put to a referendum vote on the ballot for this November.  Depending on what happens with the vote in November, same-sex marriage may or may not become recognized in Maryland.  In any event, there is no Maryland statute that “prohibits” same-sex marriage.

    For same-sex couples living in Maryland, this means that they cannot yet marry in Maryland, and that they also have not yet been recognized by the state of Maryland for any other purpose than divorce. If the divorcing parties have a valid marriage from another state, but now reside in Maryland, then they can file divorce proceedings in Maryland.

    What problems do same sex couples continue to face in the state?

    LO: The issues are huge and include, health insurance issues, partners cannot hold property as tenants by the entireties (like other married people), which affords much protection. And the federal government does not recognize same-sex marriage, which implicates things like social security.  There is also no spousal privilege for partners and no recognition in the estate arena for partners.  Therefore, they are subject to transfer tax issues.

    How does Maryland's law affect same sex couples with children?

    LO: This is yet an unknown.  The reported case did not involve child issues. [But] same-sex partners can adopt and in situations when one of the partners is the natural parent, then the partner non parent is not a “parent”. Adoption could address some child issues, but when one of the partners is the natural parent, she won’t terminate her parental rights to create rights in her partner. [Further], children cannot get social security disability from partner non-parent.

    As it relates to divorce of same-sex parents, the issues for the children are the same as in any divorce proceeding (e.g. child custody and access, child support, etc.); however, in a case where one partner parent is the natural parent, then parental rights are a significant consideration.

    How does Maryland's law affect complicated medical decisions, such as end of life decisions?

    LO: In many instances, partners cannot provide health insurance coverage for the other partner.  The organization Equality Maryland offers a fact sheet on domestic partner health benefit issues. The content is dated, but it still may provide a good overview of some of the main concerns for those families without coverage.

    [But] there are significant end of life issues. A domestic partner is mostly unrecognized within the law relating to end of life decisions and estate decisions.  Without significant documentation, planned and executed in advance, partners are not recognized. Powers of attorney, advance directives can make a difference, but they terminate on death.

    What options do same sex couples have available when running into obstacles with the aforementioned issues?

    LO: One way for same-sex couples to address some of these concerns is by engaging a Maryland family law firm to mediate and settle domestic disagreements out of court. We recommend mediation to many people coming to see us about divorce, since much of the control around the decisions being made remains with the divorcing parties. If both parties are willing to work through mediation, then many of the issues between the parties that do not involve third parties can be discussed and decided on in a settlement agreement.

    Is there anything else you would like to add that is important concerning the topic?

    It is really important for those in a same-sex marriage who are considering divorce to speak with an experienced family law attorney and get educated on the issues that will be most relevant in their particular situation.

    If the Maryland statute does survive, then the rights and obligations relating to divorce and custody matters presumably will have the same application to same sex couples.


    Alex Levin is a writer for Seeger Weiss, a Plaintiffs firm specializing in class action litigation, injury law, consumer protection, and product recalls and defects