Now that same-sex marriage is legal in Georgia, we are receiving many questions about same-sex divorce. Some people fear that because the Supreme Court’s Obergefell v. Hodges ruling did not mention divorce, Georgia might prevent or challenge same-sex divorces.
However, various legal cases around the country already show that courts are holding up same-sex divorce as a right that accompanies same-sex marriage. Current legal discussions also generally confirm that same-sex divorce is now as clear a process as same-sex marriage.
Here are the key points you need to know about same-sex divorce in Georgia:
Same-sex divorce may not work like divorce for heterosexual couples especially when it comes to children.
Previously, Georgia law prevented courts from giving out same-sex divorces even if the same-sex couple had a legal same-sex marriage in another state. Today, that law is obsolete and no longer applies after Obergefell v. Hodges. Georgia same-sex marriage is legal—and so is same-sex divorce. Types of divorce such as contested and uncontested divorces, mediation, and legal separation now apply equally to same-sex couples.
Shorter marriages may affect financial settlements.
Georgia may not recognize the full length of your relationship if you were married in another state, under a domestic partnership, or cohabiting for many years. This means your case may be hurt with issues like alimony, which is calculated partly based on the length of your relationship as recognized by the court. As a result, spousal support for opposite sex couples may result in higher financial awards than with same-sex couples for a while.
Courts may struggle to divide assets and award support fairly to same-sex couples.
Despite the law, many cultural biases still exist when Georgia courts are analyzing who gets assets, property, alimony, and child support. Depending on where you live, courts may struggle to decide who gets what between two men or they may have a bias toward a biological mother in a lesbian couple. Your attorney will carefully guide you through your case and consider how judges and courts may view each same-sex spouse in your situation.
Be especially careful about same-sex child custody.
With kids involved, a judge or court not experienced with same-sex divorce cases may make irrational decisions based on cultural bias rather than remaining objective. For example, biological parents may be automatically favored because the idea of a biological mother makes the most sense to a judge. Overall, having an experienced same-sex divorce attorney in Georgia is essential to helping you anticipate obstacles that may specifically plague same-sex couples.
In the long term, the Georgia legal system will eventually become acquainted with same-sex divorce, acquire more experience and precedents in handling such cases, and arrive at a point when the differences between opposite-sex and same-sex divorce cases are barely seen. For now, absolutely make sure you’ve got an experienced attorney on your side.
If you have questions about your rights or how the new law affects your situation, please contact one of our experienced attorneys at Stearns-Montgomery & Proctor.
Differences Between Domestic Partnership Agreements And Same-Sex Marriage
Laws regarding divorce for same sex couples in Georgia only apply if that couple is legally married. The same divorce laws do not apply to domestic partnerships or to non-married couples. Many domestic partnerships are covered by domestic partnership agreements, which are legal contracts outlining certain rights and responsibilities for couples who don’t intend to be married, but want protections in the event of a breakdown of the relationship. For a non-married couple with no domestic partnership agreement, handling a separation can be very difficult.
Limitations and Rights In A Domestic Partnership
Prior to the 2015 federal ruling upholding same sex marriage rights in the 50 states, a domestic partnership was often the best way for those in a same sex relationship to obtain similar protections available by law to married couples. These protections include the right to list your partner on your health care benefits, to designate them as your healthcare decider, and to be granted visitation in the event one of you is incarcerated. These protections do not, however, include the right to file a joint tax return. In Georgia, the Human Rights Campaign advises that domestic partnership agreements domestic partnership agreements are available in the following jurisdictions:
- Athens-Clarke County: Open to heterosexual and same-sex couples who are residents or in which one of the parties is employed by the city;
- Fulton County: Available to same-sex couples only who are residents or employed by the county;
- Atlanta: Open to all couples who are residents of the area.