Until the historic decision by the United States Supreme Court in Obergefell v. Hodges on June 26, 2015, same-sex couples were not legally permitted to get married in Georgia. For some couples, they would go to a state that did permit same-sex marriages, but those marriages were not recognized in Georgia. Back then, the law firm of Ashley McCartney, LLC had to pursue work-arounds for LGBT clients who were living as married couples, but not able to access the equitable laws of divorce dealing with property division, child custody, child support and other issues that arise in a divorce. There were certain counties in Georgia that would entertain a “gay divorce”, such as Fulton and Dekalb County, if it was called something different like a “partnership dissolution”. But, there were limited options.
Once the Obergefell ruling was issued, all 50 states were compelled to recognize same-sex marriage. Along with that came the legal obligation to allow same-sex couples to take advantage of our Georgia divorce laws. Same-sex divorces are really no different than divorces for heterosexual couples. A party files for divorce in the county of the spouse’s residence and that spouse has 31 days to file a response. The same-sex couple will exchange discovery of their financials and will be ordered to attend mediation, unless they are able to resolve their issues ahead of time. Common issues include equitable division of assets and liabilities. This can include deciding what to do with a marital house, division of retirement accounts, division of credit card debt and other issues that may be unique to the same- sex couple. Other common issues can be child custody, child support and spousal support.
Why can it get complicated?
The big reason why these divorce cases can get complicated is that LBGT couples may have been together for a lot longer than they have been married. This can create some problems and trying to determine exactly what to do about dividing assets or what will actually be fair in the situation.
For example, the default for opposite-sex couples is that only items purchased after they got married count as marital assets. But what if the same-sex couples had been living together for 20 years, but they weren’t legally allowed to get married until 2015? There is no clear ruling on whether courts can consider the time that the same-sex couple was living as a married couple, but were not allowed to actually get married. In Georgia, equitable division means what is fair and it is arguable that the courts should be able to look back to determine what is fair.
When things do get complicated, it’s very important for all involved to understand exactly what legal options they have.