Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Same Sex Couples

In Georgia, what are the legal rights same-sex couples have with marriage, divorce and child custody?

In Georgia, O.C.G.A. 19-3-3.1 defines marriage and states that it is declared to be the public policy of this state to recognize that the union only between man and woman. Marriages between persons of the same sex are prohibited in this state. The statute further states that no marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.

The landmark 2015 Supreme Case Obergefeil v. Hodges challenges the legality of the Georgia law regarding same-sex marriage. In fact, the Court explicitly rules that the section of Georgia law which prohibits same-sex marriage in the state is unconstitutional. Georgia Attorney Sam Olens issued a statement indicating that Georgia will follow the law and adhere to the ruling of the Court. Same-sex marriages have therefore proceeded in Georgia. There have been a lot of questions about marriage rights, divorce rights and child custody in regards to same-sex couples. Bivek Brubaker & Prescott is here to walk you through all of your rights.

Marriage Rights

Since 2015, same-sex couples across the United States have legally been able to participate in marriage and enjoy all of the tangible benefits that come from being married. These rights include:

Divorce Rights

Prior to 2015, same sex couples had issues with being granted a divorce. If a couple moved to a state that did not recognize gay marriage, they would be barred from getting a divorce, as their marriage would not be legally recognized. Sometimes, they would be able to go back and get a divorce in the state that they were originally married in, but most states required a certain period of residency before a divorce could be finalized.

Now that the Supreme Court has ruled same-sex marriage legal in all 50 states, same-sex couples are also entitled to a divorce in every state. Divorce is available no matter which state the couple was originally married in and when they were married. However, Georgia may not recognize the full length of your marriage in a divorce settlement if you were once recognized as a domestic partnership or co-inhabitants. This view could raise problems with issues like alimony.

Types of divorce, like mediation, legal separation, contested and uncontested divorce are now equally available to same-sex couples.

Child Custody

In states like Georgia, with plenty of cultural biases, equally dividing assets like property, child support and alimony have proven difficult. For example, some courts have shown a preference towards giving the biological mother in a lesbian couple custody rights. Courts have also deeply struggled with whom to give more to financially in a settlement between two men. In regards to child custody, it is crucial to have an experienced lawyer on your side. A lawyer can help a judge stay objective rather than making a biased, illogical decision.

Legal Counsel

While the legal discussions regarding same-sex marriage and divorce are still cloudy in many areas, it’s imperative to have legal counsel on your side. At Bivek Brubaker & Prescott, we specialize in family law and have all of the tools and experience to help you navigate your way through any situation. Call us today!


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