Navigating the Unique Pitfalls of Divorce for Same-Sex Couples in Georgia

The landmark Supreme Court ruling in 2015, Obergefell v. Hodges, gave same-sex couples the right to marry throughout the United States, but not all marriages last forever.

Divorce is just as much a reality for same-sex couples as it is for heterosexual unions. When a same-sex couple residing in Georgia decides to end their marriage and file for divorce, they face unique legal pitfalls.

Georgia is an equitable division state. Deciding what constitutes the martial assets to be divided and what are the custodial rights of each spouse if children are involved, can be more complicated for same-sex couples than for heterosexual couples.

Determining and Dividing Property / Marital Assets

Some states had legally sanctioned same-sex marriage before the landmark 2015 U.S. Supreme Court ruling in Obergefell v. Hodges, but Georgia was not one of them. The relatively recent acknowledgment of same-sex marriage rights in Georgia can create difficulties in terms of property division and alimony, both of which depend, in some form, on the length of the marriage.

When it comes to divorce, property is divided into two (2) categories: marital property that is equitably divided between the parties as part of the divorce and separate property that remains the property of the owning spouse post-divorce. Georgia law provides that marital property starts to accrue when the marriage begins. Because same-sex couples were not able to marry until 2015, the amount of marital property to divide is often much more limited. For example, consider a same-sex couple that has been together for 25 years and accumulated property, investments and other assets during that time but, due to Georgia’s same-sex marriage prohibition, were only legally married for two years. Under Georgia law, the only marital property for the court to divide would be those assets accumulated during the two-year period of the marriage.

A similar problem exists for a same-sex spouse seeking alimony. Since Georgia law uses the duration of the marriage as a factor in determining alimony, the amount of alimony awarded may be lower for one party in a same-sex marriage that is being dissolved than for some heterosexual divorces.

One way to level the playing field for spouses with less property in their name is for an award of lump sum alimony – a rarely used tool, which allows the court to pull assets from one spouse’s separate estate and award it to the other. Another way to address the inequity is to argue for an alimony award based on the length of the parties’ relationship and cite to the “catch-all” provision in Georgia’s alimony statute. That provision allows the court to determine alimony based on “such other relevant factors as the court deems equitable and proper.”

The Dilemma of Child Custody and Visitation

There also are distinct custody issues for same-sex couples seeking a divorce.

For same sex couples, one or both parents will have no biological connection to the children born during the relationship. In cases where there is one biological parent, the non-biological parent may find him or herself facing particular difficulty in seeking custody rights.

Prior to Georgia’s recognition of same-sex marriage in 2015, children born to same-sex couples were technically born out of wedlock. Under Georgia law, only the mother of a child born out of wedlock is entitled to custody unless the biological father legally legitimates the child. While there are a number of legal theories aimed at addressing this inequity for same-sex parents, courts will likely find the non-biological parent lacks the necessary legal standing to pursue custody.

Marriage can help avoid these issues. Same-sex parents with children born during the marriage will be entitled to a parentage presumption. For children born prior to the marriage, the non-biological spouse can secure his or her custodial rights by going through a step-parent adoption.

As the laws surrounding same-sex divorce continue to evolve in Georgia, gay and lesbian couples seeking to end their marriages need to be aware of the specific issues they face and get the latest and most sophisticated advice from experienced legal counsel.