A court’s conundrum: When same-sex partners want to split
By Ellen McCarthy,
When Jessica Port showed up in court Friday to pursue a divorce, she first stopped to consult with her lawyer. Then she crossed the room to hug her ex, chatting happily until it was time to be seated.
The electronic board outside the courtroom identified the case as “No. 69, Jessica Port v. Virginia Anne Cowan.” That title is misleading. Port and Cowan are on the same side of this case: They both want to get divorced. But a Prince George’s County judge said they could not, reasoning that because same-sex marriage is not legal in the state, neither is same-sex divorce.
Now the highest court in Maryland will decide whether he was right, and whether the women will be required to maintain a bond they’ve tried for almost two years to sever.
The case represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. The laws are constantly evolving and election-year politics promise to heighten the already divisive passion surrounding the issue.
Port was 21 when she met Cowan at at a meeting for gay and lesbian students and their allies at Montgomery College in Rockville. The two quickly fell in love and after a year decided to move in together. An engagement followed and when California legalized same-sex marriage in 2008, they flew to San Francisco, exchanged vows at the courthouse and spent the rest of the trip sight-seeing.
But soon after their return it became apparent that the marriage wasn’t working. “We were so young when we met and fell in love and kind of fell in love with this fantasy idea of being together and growing old together,” says Port, now 30 and a counselor at a high school for at-risk youth. “We realized that that future we had agreed upon was very different — we wanted different things.”
Port moved to Hyattsville and purchased a home. Cowan remained in the District, where they had been living. Port knew that in order to file for a divorce in Maryland, spouses must first live apart for a year. In the summer of 2010, Port and Cowan, who have many mutual friends and an amicable relationship, spoke again and decided together that divorce was the best option for them.
They sought guidance at a free law clinic and were assured that the divorce was no problem — other same-sex couples had been granted divorces in the past. Port filed the requisite paperwork with Prince George’s County and on the day of the hearing, she and Cowan sat next to each other in court, playing Hangman and Tic-tac-toe to pass the time. They watched as one couple after another was granted a divorce.
The women had already divided their property. The divorce was uncontested and they had no outstanding issues for the court to resolve. They were sure their case was cut and dried. But when they were called to the bench — the last case of the day — Judge Michael Chapdelaine said his decision would be delivered by mail.
Two weeks later Port received a letter saying that because she and Cowan are both women their divorce could not be granted.
“I was pretty surprised and kind of panicked about the idea of being legally tied to this person for the rest of my life,” Port recalls from the Silver Spring office of her lawyer, Michele Zavos. Port is an effervescent, chatty woman who favors floral skirts and wears artsy glasses. On her left hand is a diamond ring. About two years ago, she met another woman.
“The ring is a commitment to each other for planning a future together,” Port says. “And until this case gets cleared up, we don’t really know what that looks like and how to protect ourselves legally.”
After the divorce was denied, Port reached out to Lambda Legal, which put her in touch with Zavos, who has seen many similar cases in her 30 years as a lawyer. “Fifty percent of gay couples break up — just like straight people,” she said. “It’s amazing.”
Zavos had one client move to D.C. from North Carolina solely for the purpose of pursuing a divorce after same-sex marriage became legal in the District. She has advised clients who live in Virginia and cannot divorce their same-sex spouses to get separation agreements that allow them some legal and financial protection. Zavos has worked with more than one person who has gotten hung up trying to adopt a child with a current partner while still legally married and unable to divorce a former spouse.
Port says moving on from the relationship is difficult when legal entanglements remain. “So, I own a home. I own a car. What entitlement does she have? Does any of that money go to her?” Port asks. Life would become even more complicated if either of the women had a baby or became ill and needed someone to make medical decisions on her behalf.
In March, Gov. Martin O’Malley (D) signed legislation to legalize same-sex marriage in Maryland. But the law isn’t scheduled to go into effect until Jan. 1, 2013. If it goes through, Port and Cowan would be able to divorce without a problem. But there is a referendum on the ballot to repeal the law — and Port, Cowan and their lawyers aren’t willing to take the chance to see how it turns out.
On Friday, Shannon Minter, legal director of the National Center for Lesbian Rights, argued Port’s case before a panel of eight judges at the Court of Appeals in Annapolis. Cowan and Port sat a row apart and eagerly looked on as Minter explained that for more than 100 years Maryland courts have applied a “common law doctrine of comity” to recognize marriages that were valid in other states, even if they were illegal in Maryland, as was the case in a marriage between an uncle and niece.
“We have locked these parties into a marriage that is irrevocably broken,” Minter said.
“It gives wedlock a whole new meaning,” added Susan Sommer, director of constitutional litigation for Lambda Legal, who represented Cowan.
There is no way of knowing when the judges will make a decision, but Zavos expects it will be a matter of months. If the divorce is not granted, Port and Cowan will have other options. Because same-sex marriage is now legal in the District, Cowan can file for divorce there.
But Port says the case — which has grown much more significant than she ever imagined — is not just about the two of them anymore. There is a similar case pending in Baltimore. And Zavos has several other same-sex clients getting ready to file for divorces in Maryland.
“It started off as ‘The two of us want to get divorced and we have a right to get divorced,’ ” Port says. “And then it became, ‘Well, if we have a right to get divorced, then everybody has a right to get divorced.’”