MR. KOJO NNAMDISome Americans never leave the city they're born in. Others live their lives without ever crossing into another state. Not so in our region, where few live our lives in just one jurisdiction. We cross boundaries regularly, even daily, working in D.C. and living in Fairfax, living in the District but going to school in College Park, or owning a home in Prince George's but regularly crossing the Wilson Bridge into Alexandria for dinner and shopping. On an ordinary day, we don't think much about it.

MR. KOJO NNAMDIBut when it comes to the law, and especially family law, these jurisdictional lines make a big difference. Where you live determines a lot about your legal rights, but not everything. Joining us in studio to discuss this is Michele Zavos. She is an attorney and partner with The Zavos Juncker Law Group, a firm specializing in family law in Maryland, Va. and the District. Michele Zavos, thank you for joining us.

MS. MICHELE ZAVOSThank you.

NNAMDIAlso joining us by phone from Las Cruces, N.M. is Nancy Polikoff. She is a law professor at American University's Washington College of Law. She is the author of "Beyond (Straight and Gay) Marriage" and has a blog of the same name. Nancy Polikoff, thank you for joining us.

PROF. NANCY POLIKOFFThanks, Kojo.

NNAMDIIf you'd like to join the conversation, call us at 800-433-8850. Do you own property or raise children with someone you are not married to? How worried are you about your legal rights? How has your marital or non-marital status affected your legal rights in some way? Call us and share your story, 800-433-8850. Michele, it will sound odd to some, but it's my understanding that people, and not just same-sex couples, are, well, celebrating a recent divorce case decided in Maryland. What makes this decision by the Maryland Court of Appeals such a big deal?

ZAVOSThat's correct. It's the case of Port v. Cowan, and the decision just came out last Friday from the Maryland Court of Appeal, which is Maryland's highest court. What happened in that case is that two women attempted to divorce from a marriage that was performed in California. The trial court judge said that Maryland does not recognize these marriages as a matter public policy of Maryland.

ZAVOSThe Court of Appeal found that Maryland does recognize these marriages as a matter what's called comity, which is a common law doctrine. In order to grant the divorce, the Court of Appeals had to first recognize the marriage. And the decision is very clear that all marriages between same-sex couples that were performed in another jurisdiction and were valid in that jurisdiction are now considered marriages in Maryland.

NNAMDIBut here was what might confuse some people because I was surprised to learn that the Court of Appeal judge who wrote this decision had previously voted against gay marriage. That is, he voted to uphold an earlier ban on gay marriages. To us non-lawyers, his thinking looks inconsistent, but you lawyers say it isn't so. Why not?

ZAVOSIt's correct. It's not so at all. These are two entirely separate decisions, entirely separate matters. The first case, Deane v. Conaway -- and this is Judge Harrell who wrote the majority opinion in that case, 4-to-3 -- said that there's no right under Maryland law to be married within Maryland. That was five, six years ago. This case is not that issue.

ZAVOSThis case is whether Maryland will recognize a valid marriage from another jurisdiction. And, in fact, in all of Maryland's history, Maryland never has not recognized a valid marriage from another jurisdiction, so Judge Harrell certainly understood that. And he wrote the opinion that was 7-0.

NNAMDIAnd that's the opinion you say is based on the principle of comity?

ZAVOSYes.

NNAMDINancy Polikoff, how, if at all, will cases like this have an impact on heterosexuals as well?

POLIKOFFWell, the principle for same-sex couples really comes from the law as it affects heterosexuals because, up until now, the issue of whether a marriage would be recognized, up until very recently, was only about heterosexuals. So it's a reminder of the state of the law in Maryland. And, really, everywhere, one of the most frequent issues for heterosexuals is the doctrine of common law marriage. It's not true that if you live with somebody for a certain period of time, you're automatically considered married to them.

POLIKOFFBut it is true that there are 11 states that recognize the doctrine of common law marriage, as does the District of Columbia, and Maryland does not. So you could act as though you were married in Maryland for your whole life, but you would not be married under Maryland law unless you acted as married in a jurisdiction that recognized common law marriage and then moved to Maryland. You would be considered married there because they would recognize a common law marriage from elsewhere.

NNAMDIMichel Zavos, will private sector employers in Maryland, for example, have to recognize gay divorce now?

ZAVOSWell, I think that -- I think the question really is: Will these private sector employers recognize marriage between same-sex couples? Because many, many benefits that are given through employment are based on marriage, and for people who are not married -- they or their marriages are not considered valid -- they don't have access to these kinds of benefits. And now, private employers, I think, will be required to recognize marriages that were valid outside of marriage -- Maryland.

NNAMDIWe know Maryland passed a same-sex marriage law last year, and it's been put on hold, pending a referendum. How, if at all, would this case, in your view, affect that law?

ZAVOSWell, again, they are two separate issues. What was passed by the legislature and signed by Gov. O'Malley this summer is that Marylanders will have a right to marry in Maryland. And if that is a subject of a referendum, which I think would be very unfortunate, we certainly hope that Marylanders will reject what, I think, is really hate and make sure that that law goes into effect in January. But the Port case is a different issue, and that is, again, that Maryland will recognize a valid marriage from another jurisdiction.

NNAMDIAnd, Nancy Polikoff, when the District of Columbia approved gay marriage, it did so without putting a residency requirement into place. Is this common practice?

POLIKOFFIt is actually. It's very common. You've heard of destination weddings. You can really go anywhere and get married. And so Maryland couples have been able to marry in the District of Columbia, and many have. And now it's clear that those marriages are and will continue to be recognized in Maryland. And that is really the common rule.

NNAMDIWhy is residency required for divorce then but not for marriage?

POLIKOFFWell, it has a different history behind it. Mostly, states did not want to become known as divorce mills in the time when divorce was less common and more stigmatized, so states put residency requirements in, in order to make it possible to limit people coming to those states specifically for divorces. What we have now, because of this patchwork of same-sex marriage laws, is there are states that will not let a couple divorce because they won't recognize the marriage and that couple cannot go anywhere else to get divorced because of the residency requirements.

POLIKOFFFortunately, the District of Columbia -- and Michele could tell you more about this. But the District of Columbia has recently passed a law that says if you married in the District of Columbia and you live some place that won't recognize your marriage, you can get divorced in the District of Columbia. So that'll help people whose marriages end who were married here.

NNAMDIMichele Zavos.

ZAVOSYes. It'll help certainly to a large extent. The D.C. law was actually modeled on a law in California. I have many clients who live in Virginia. And, of course, 50 percent of all marriages end in divorce, and they want to be divorced. But, of course, in Virginia, they can't get divorced.

ZAVOSThe problem -- and we continue to work on this issue -- the problem is that the divorce itself would have to be uncontested, which means, if there were disputes over division of marital property, there were disputes over alimony, there were disputes over children, a D.C. court, even after the passage of this law, is not going to be able to address those issues.

NNAMDIIf you'd like to join the conversation, if you have questions or comments, call us at 800-433-8850. We're talking about Family Law for same-sex spouses, unmarried couples and single folks, whether gay or straight, 800-433-8850. Michele Zavos is an attorney and partner with the Zavos Juncker Law Group, a firm specializing in family law in Maryland, Virginia and the District. She joins us in studio.

NNAMDIJoining us by phone is Nancy Polikoff. She's a law professor at American University's Washington College of Law. She's the author of "Beyond (Straight and Gay) Marriage." She also has a blog of the same name. We've all heard that it's a bad idea to die without a will. This is especially true if you're a parent or if you're gay or if you are in Virginia. Is that correct, Michele?

ZAVOSWell, it depends who you are.

NNAMDIOh.

ZAVOSIt depends who died. If you are a straight person, a heterosexual person in Virginia and you are married, if you have not proactively written your own will, the commonwealth of Virginia writes it for you and will leave your assets to your spouse and children if you have any.

ZAVOSIf you are a gay or lesbian person and you have a partner, no matter how longstanding, and you have not proactively written your will, the commonwealth of Virginia will write that same will as it will for the heterosexual people, except for your assets will be left to your parents, if they are living, and, if not, to your siblings. Your partner will not be a part of that equation. Now, it's a little different in Maryland now...

NNAMDIYes.

ZAVOS...of course, and the District because if you are married, it doesn't matter to whom you are married. Your marriage is going to be treated as a marriage, and you will be able to inherit from a spouse, even without having proactively written your will.

NNAMDICare to comment on that at all, Nancy Polikoff?

POLIKOFFWell, that's -- that's exactly right, and one of the things that we know is that a lot of people don't write wills, and it's very important for people to do that, really, regardless of where they live, even though the consequences will be somewhat different. But, you know, you never know when you're going to move. People might move, and it's not the first thing they think of. Oh, I better rush to a lawyer and write all my legal documents. So, you know, even if you are in D.C. or Maryland, it's certainly a good idea to have a will in place.

NNAMDIMichele Zavos.

ZAVOSI think also that's exactly right. And what I tell my clients and when I speak on this issue, I ask people, how many people out there have a will? And you these, you know, hands sort of go up. And I say, well, actually, everybody has a will. It's just whether you're going to like it or not. If you proactively wrote it, you're going to like it. But if you have not proactively written it, the state of your residence or the District is going to write it for you, and everybody gets the same one.

NNAMDIOn to Steven in Old Town, Alexandria. Steven, you're on the air. Go ahead, please.

STEVENHi, Kojo. Thank you for taking my call. My question to the panelists, you know, the thing about gay marriage, it's not gay marriage. It's marriage equality. I mean, just by tacking the word gay in front of marriage just sort of makes it less than and also invites controversy. I mean, that's part of the thing. You know, people don't see it as a marriage. It's exact same marriage between heterosexuals that the gay people are having, but the difference is it's gay marriage. No one's debating hetero marriage. It's just gay marriage.

NNAMDIOK.

STEVENWhy isn't it just marriage equality, period?

NNAMDIPoint well taken. Michele.

ZAVOSOh, absolutely.

NNAMDIThank you very much for your call, Steven. Whether you're gay or straight, one area where reality has gotten way ahead of the law is reproductive technology. New medical procedures and possibilities are pushing family law into a lot of unfamiliar places. Nancy Polikoff, I'm thinking of the recent case about children who are created after the death of one parent, something you wrote about. Can you tell us about it?

POLIKOFFSure. This was a married heterosexual couple, and the man was diagnosed with a terminal illness. He froze some sperm. After his death, the woman he'd been married to used that to conceive what turned out to be twins. And when trying to get Social Security survivors benefits for those twins, the Social Security Administration said eligibility for child survivors' benefits depends on state law. So much of our federal benefit system in terms of families depends on recognition by the state.

POLIKOFFAnd in the state where this couple lived, the -- at the time of the man's death, the law was that children who were conceived after death were not eligible to inherit. And that's what makes you eligible for Social Security Survivors benefits. So the Supreme Court said that the Social Security Administration was correct in making that decision about those twins. And they do not get child survivor benefits.

POLIKOFFBut what it also says is that if in another state, where the law says, yes, even if you're born after the death of your parent -- long after the death of your parent, conceived after the death and born after the death of your parent through this reproductive technology, if the state law said you could inherit, then you would get child survivors benefits. So it's quite complicated because state law varies, but I would also point out that, for same-sex couples with children, it is an important decision because there are states in which a child will inherit from the non-biological parent.

POLIKOFFSay, a lesbian couple has a child together using donor insemination, in the District of Columbia, the non-biological mother is a parent of that child, regardless, even -- whether the couple is married or not, the non-biological mother is a legal parent of that child immediately. The child does have the right to inherit from that mother. And so if she were to die, that child would get child benefits -- survivors benefits. You take the same couple and put them in Virginia, you have a different situation.

NNAMDIWell, you're usually a fan of defining parenting in an expansive way, Nancy, but it's my understanding that you're not particularly bothered by the way the Supreme Court limited in the case you just described known as the Astro case. Why not?

POLIKOFFWell, it's interesting because what the surviving spouse, the mother, argued in that case was that because these were biological children of a married couple, a heterosexual married couple and their biological children, that they were automatically children in the legal sense and should be entitled to all of these benefits.

POLIKOFFYou know, it's interesting when we debate the availability of public assistance to children, there are these allegations, which, in my opinion, are totally bogus, that women have additional children so that they can get additional public assistance, which is ridiculous and used in an inflammatory political way. But, essentially, if you look at this case, you have a woman who conceived those two children after the man she was married to had died and then wanted to get Social Security survivors benefits for them.

POLIKOFFAnd her argument was, look, we were married to each other, and they're his biological children. And so they are entitled to these benefits. And one of the things Justice Ginsburg said in her -- in the unanimous decision was essentially chastising this mother for arguing that there should be some distinction made about these children because they were born to a married couple as opposed to an unmarried couple, something the law doesn't really do.

POLIKOFFSo it's -- the other thing, I think, is we can see that there's a greater recognition for same-sex couples and their children in some states than others. And this law basically says if the state will recognize you, then you get child survivors benefits. And so that leaves a lot of room for protection if the states do protect.

NNAMDIGot to take a short break. Has your marital or non-marital status affected your legal rights in some way? Call us and share your story at 800-433-8850. Do you own property, you raise children with someone you are not legally married to? How worried are you about your legal rights? 800-433-8850. You can send us a tweet, @kojoshow, or email to kojo@wamu.org. I'm Kojo Nnamdi.

NNAMDIWelcome back to our conversation about family law for same-sex spouses, unmarried couples and single folks. We're talking with Michele Zavos. She's an attorney and partner with the Zavos Juncker Law Group, a firm specializing in family law in Maryland, Virginia and the District. She joins us in studio. Nancy Polikoff joins us by phone from Las Cruces, N.M. She's law professor at American University's Washington College of Law.

NNAMDIShe's author of the book "Beyond (Straight and Gay) Marriage." She also has a blog of the same name. If you'd like to join the conversation, call us at 800-433-8850. Michele Zavos, in a case no less challenging but different from the one we were discussing before the break, two Florida women were fighting over whether both or only one was the true mother. In this unique case, both women had a biological connection to the child. How so?

ZAVOSI think one gave birth and one was the biological mother.

NNAMDIOne donated the egg, the other carried it.

ZAVOSOne transferred the egg, and the other one actually birthed the child. And you refer to that as unique, and actually it's not as unique as one might think. There have been so many advances in assisted reproductive technology that this is actually a fairly common way for lesbian couples to have children. I have many clients who have done this. There was a similar case out in California -- I'm sorry I don't remember the name -- but exactly the same thing happened.

ZAVOSTwo women broke up. One was what we call the gestational mother. The other was the biological mother. And, unfortunately, just like heterosexual couples who break up and have a War of the Roses over divorce, these two women had this over the children. I think they were twins. And the mother who gave birth said that the other mother was not a mother because she had actually signed some documents with the fertility center, saying that she knew she was giving up all legal rights to the children.

ZAVOSAnd I think people do that because doctors tell you to sign forms. You sign forms, and, you know, you go on. That case went into litigation. The trial court held that, actually, the contract did end all rights from the biological mother. The case eventually went to the California Supreme Court, which found that, in fact, both of these women were legal parents. One would help -- hope that the same thing would happen in Florida.

ZAVOSThere have been cases like that in the Washington Metropolitan Area. I'm aware of one. Fortunately, it's settled, which I think was wise. We haven't seen a case like that go to an appellate court. I hope they don't. But I'm afraid that we may see more of those.

NNAMDINancy Polikoff, care to comment on that case?

POLIKOFFWell, it is -- obviously, it's a very expensive way of having a child, so that limits the number of people who can do it that way. But what it really raises is the issue of how the law defines what makes somebody a parent, and that is a very important issue. And I'm very proud of our law in the District of Columbia that would make the partner of a woman who gives birth through donor insemination a legal parent without that person having to donate their egg.

POLIKOFFNow, some people have a desire to do that because they both want to have a biological relationship to the child, one through genetics and the other through gestation and birth. But I do know that some women, if they can afford it, they will use this expensive and invasive procedure because they think it will solidify their legal rights in a better way than if they do it some other way.

POLIKOFFAnd so at least we know that if they are giving birth to the child in the District of Columbia, that under District of Columbia law, that child has two parents. Both those women are legal parents immediately because they underwent the donor insemination process together with the intent that both of them would be the child's parents, which, by the way, is the standard if you have a heterosexual married couple.

POLIKOFFReally, nobody asks any questions about that. They use a donor, and the husband is automatically considered the father. In the District of Columbia, in New Mexico and in Washington State, we have statutes that make it clear that if a lesbian couple does that or if an unmarried heterosexual couple does it or certainly an unmarried lesbian couple, it doesn't make any difference. Both of the people are parents.

NNAMDIMichele Zavos.

ZAVOSThis again raises the issue of how different all state laws are, so that if you are a lesbian couple who gives birth in the District of Columbia, within the District, as Nancy said, you will both be parents to that child. However, when you go into Maryland or when you go into Virginia, I think there are -- the way the law is right now, I think it's unsettled as to whether those states are going to recognize that law of the District that makes both those women legal parents.

ZAVOSAnd I always counsel my clients to obtain what we call a second-parent adoption, if possible. Virginia, right now, we haven't done those, but we certainly do them as a matter of course in Maryland. I also tell my D.C. clients to do the same thing because an adoption gives them, I think, significantly more legal protections because it fits into the sort of more, unfortunately, traditional notions of what a family is.

ZAVOSI mean, I think we keep pushing to have family be defined on intent. And that's what the D.C. Parentage Act does, but we don't have similar laws in Maryland or in Virginia at this time.

NNAMDIWhen it comes to adoption, it's my understanding that many Virginians do what some call the Maryland shuffle. What's that?

ZAVOSWell, I assume what people are talking about is they move to Maryland for some period of time -- or the District -- in order to obtain a second-parent adoption. I certainly -- there's certainly no prohibition to this, and both Maryland and D.C. have very strict jurisdictional requirements. So people have to be very careful that they comply with those.

NNAMDIOn to Steve in Temple Hills, Md. Steve, you're on the air. Go ahead, please.

STEVEHello. I'm just -- how are you doing?

NNAMDII'm well.

STEVEAnyway, I'm against the -- I'm against homosexual marriage. I'm very much against it. And what I kind of objected to that took notice in your program was the lady. She referred to the referendum that we want to bring up in Maryland about a marriage like that. She referred to it that if it doesn't pass, I believe it'll be more because of hate. I'm not in agreement with that. It's more, with us, moral.

STEVEWe don't believe that a man and a man can do things that they can be married, and we don't think that a woman can be the same way. I can be more explicit, but I won't. And then she just made a statement about marriage without notions of what a marriage is supposed to be. If I can remember what I took up in a few law classes, we call things a judicial notice. I believe it means that we recognize that the 25th of December is Christmas. That's a judicial notice.

STEVEWell, we recognize also that marriage is a judicial notice. We know how it came about, whether your spiritual beliefs are in line or not. We know how marriage came about. We know it's a contract between people. So let them make a contract to live together and not put it under guides on marriage and below marriage. We know that...

NNAMDISteve, while that is not quite the discussion we're having today, we were trying to look at the intricacies of law in the various jurisdictions and how it affected a variety of familial relationships. I will, nevertheless, have Michele Zavos respond.

ZAVOSWell, obviously, this is a longstanding argument. I believe the caller conflates religion and civil marriage, and I don't think anyone is attempting to try and have people change their religious beliefs. But civil marriage is a very different sort of thing. And, in this country, civil marriage provides all sorts of rights and responsibilities that are just not available to anyone if a marriage is not involved.

NNAMDIOn to Gail in Washington, D.C. Gail, your turn.

GAILHi, Kojo, thanks for taking my call. I wanted to point one thing out and then ask a question. My partner and I had a union ceremony back in 1996 -- so we've been together for almost 16 years now -- and that ceremony was in front -- with our parents, friends and our children, my biological children, in any case. And the point I want to make is that, you know, people say, oh, you know, now you can get married.

GAILBut the truth is, living in the District, if I get married, other than the fact that I've already spent thousands of dollars setting up a will to protect my partner -- and she's done the same for me -- I don't know what the benefit will be. And I think our listeners need a reminder that there are no federal benefits. I mean, we're not married the way other people are married, even if we do get married, that we, in fact, will still not be recognized by the federal government for taxes or anything else.

GAILBut I would like to ask about the question of do I stand to lose anything by getting married in the District? Or will it be to my benefit? I'll have to redraw my will. That's one reason I'm asking.

NNAMDIHere's Michele Zavos.

ZAVOSWell, I certainly understand the caller's position on this. I think many people feel this way. They've been together for a long time, and then why should they now go get married just because it's finally legal, whether it's in the District or elsewhere? But, yes, there are many, many, many rights and responsibilities that come with marriage that, unfortunately, the caller and her partner just don't have if they are not married. For example, in the District, at death, there is estate tax.

ZAVOSAnd if the caller has -- is fortunate enough to have an estate over $1 million, then any money over that -- she has what's called an unlimited estate tax exemption. She can give her married partner any amount of money she wants, and there's no tax. However, if she's not married, she can't. Now, in the District, there's another option, which is domestic partnership, which, within the District, is the same. But another piece is -- let's say her partner is killed by a negligent driver.

ZAVOSThe survivor, the caller, could bring an action for wrongful death. Right now, she can't. There are so many of those that would take, you know, quite a while to name them all.

POLIKOFFAnd, Kojo, if I could just say -- just stress the...

NNAMDIHere's Nancy Polikoff...

POLIKOFF...part of what Michelle said about domestic partnership in the District of Columbia. So there is domestic partnership in the District of Columbia for both same-sex and different-sex couples. And, in fact, you don't have to be in a traditional couple relationship. It's a status available to any two people who are living in a committed familial relationship with each other. And that does confer the very important legal consequences that Michele talked about. So that is another option for the caller. My partner and I...

NNAMDIWell, I'm afraid we're just about out of time, Nancy. Nancy Polikoff is a law professor at American University's Washington College of Law. She's the author of "Beyond (Straight and Gay) Marriage." She has a blog of the same name. Michele Zavos is an attorney and partner with the Zavos Juncker Law Group, a firm specializing in family law in all three local jurisdictions, Maryland Virginia and the District. Michele Zavos, thank you for joining us.

ZAVOSThank you.

NNAMDINancy Polikoff, thank you for joining us. And thank you all for listening. I'm Kojo Nnamdi.