The 2015 landmark Supreme Court ruling of Obergefell v. Hodges made same-sex marriage legal throughout the U.S., including here in the Northeast Atlanta metro area. This ruling not only made same-sex marriage legal within the 50 states but also made existing same-sex marriages legally recognized in all states in the nation.
But, with same-sex marriage eventually comes same-sex divorce. Same-sex couples face unique issues in a divorce when it comes to property division, alimony and child custody.
Property division and alimony in a same-sex divorce
When a couple in Georgia divorces, their property obtained during the marriage will be considered marital property and property obtained before the marriage will be considered separate property. Only community property is included in the divisible estate when a couple in Georgia divorces.
However, many same-sex couples were in committed marital-like relationships well before same-sex marriage was made legal. Should the property they accumulated together during that time be considered marital or separate property? This is an issue same-sex couples seeking a divorce may face that heterosexual couples may not.
Similarly, alimony, also referred to as spousal support or spousal maintenance, is generally based on the length of the marriage among other factors. As with property division, this presents issues for same-sex couples who were in committed marital-like relationships for many years before their union was legally recognized. Should those years spent together be accounted for when determining how much to award in alimony? Again, this is an issue same-sex couples seeking a divorce may face that hetero sexual couples may not.
Child custody in a same-sex divorce
In general, when a heterosexual married couple has children, both spouses are presumed by law to be the child’s biological parents. As such, they both have a right to custody and an obligation to support their child should they divorce.
However, the situation for many same-sex couples may look very different. For example, one spouse in a same-sex marriage may adopt the child as their own while their spouse does not. Other times, a same-sex couple may rely on a surrogate or sperm donor to bear a child. If the non-biological or non-adoptive parent does not legally adopt the child while married this can cause issues should the couple divorce. This is because generally only adoptive or biological parents have custodial rights or support.
Seeking help with your same-sex divorce
A same-sex divorce can look very different from other divorces. Those seeking a same-sex divorce should make sure they understand what their rights are so they can end their union in a fair and equitable manner.