Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

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Monday, February 21, 2011

Same Sex Marriage in Maryland?

Even the small-minded masses can't stop same sex marriage from coming to Maryland or elsewhere in the United States. Over and over again history reminds us that social progress is as unstoppable as democracy in Egypt.



I thought about what the happening of same sex marriage would mean to separation and divorce mediation in Maryland. Obviously, the more marriages that occur, the more divorces that will occur. In fact, if same-sex marriage comes to Maryland...I mean when it comes to Maryland, the first thing that will happen is that many same-sex partnerships will break up. Say what??? Yup. A lot of commitment-phobes will be running scared away from their "marry-me-now-because-it's-legal" partners. I doubt statistical records will be kept but I venture to say that the legalization of same-sex marriage will be the death knell for many partnerships where one partner was either perfectly happy with their personal status quo; or unhappy but silent about it, but now when pushed on the issue...well it doesn't take a heck of a lot of imagination. People are people, relationships are relationships. Yes, I know, it is a cynical vantage point that we divorce professionals have. How could we not?


How will same-sex divorce work from a procedural perspective? Duh. It will be exactly the same as any other family law matter. Long gone are the days when couples sharing children are necessarily married to one another! Divorce mediators and attorneys are mediating and trying child custody matters in Maryland between heterosexual unmarried couples every day.


However, same sex marriage in Maryland, while in its infancy (of course I am assuming it is coming), will produce certain sticky issues when it comes to Alimony and division of marital property within the court system. Why? Because the "length of the marriage" factor often won't equal the time in which two same-sex partners have been together. For alimony/property division questions this will mean that "length of marriage" in a same-sex-partnership-turned-marriage, should be given less weight and the "any other consideration" factor should encompass how many years the pre-marriage partnership preceding the marriage existed. This "any other factor the judge finds relevant" should balance the inherent unfairness that long partnerships/short marriage relationships might face when gay marriage finally arrives in Maryland. I say "should."


Here's the problem- a judge biased against same-sex marriage might not be fair. Ok, there goes the cynic in me again. That's why I am a mediator. Not because I'm a cynic, but because judges are human beings and they bring their own personal biases to the bench and therefore into your homes in family law matters. I am a mediator because I believe that especially in family law matters, if one is looking for fairness in settlements, one needs to rely on the fairness of the participants.


And therefore I urge same-sex partners and hopefully in the very near future, same-sex spouses who are separating or divorcing to choose mediation above other divorce processes. In same-sex family mediation in Maryland, the parties will work from their own value system when making choices for their post-separation/divorced families who will continue (albeit in a different separated/divorced format) after the choices are made. My point is this- Same-sex partners or spouses better make darn sure that they subject themselves to a process which guarantees that they are treated the same as their heterosexual counterparts. If the same-sex couple tries to screw one another in the separation/divorce process by capitalizing on the system which was and may continue to be biased against same-sex couples, then....well the phrase that comes to mind is one step forward, two steps backwards, or something like that.


Both mediation and same sex marriage have a lot in common. In reality, both have been around since the beginning of time in one form or another. Both the process of mediation and the legalization of same sex marriage represent a positive progression for society. Both are unstoppable and inevitable.














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