The legalization of same-sex marriage represents a significant achievement in the area of same-sex rights in our nation. Despite having the same rights in marriage and divorce as heterosexual couples, same-sex couples face unique issues should they decide to end their marriage.
Property division and same-sex divorce
Same-sex couples seeking a divorce may have difficulty with the property division process. Georgia is an “equitable distribution” state when it comes to property division in a divorce. This means that all marital assets will be divided between the spouses based on what the court deems to be fair, even if it means one spouse is awarded a greater share of the marital assets than the other.
When it comes to same-sex divorce, the problem lies in what assets are considered marital assets. Marital assets include those earned or obtained while married. Assets owned separately prior to marriage that have not commingled with marital assets remain the property of the spouse who owns them.
However, some same-sex couples were living together in a committed relationship for many years before same-sex marriage was made legal. This means they may have accumulated assets during their relationship together that they consider to be marital, but the law does not. Dividing these assets is made more difficult, especially if one spouse claims ownership interest in an asset that the law considers separate.
Child custody and same-sex divorce
Same-sex couples also face child custody issues that heterosexual couples do not. Same-sex couples may have children through surrogacy, sperm donation or adoption. However, unless steps were taken to make the child the child of both spouses for legal purposes, child custody issues can become difficult should the couple divorce.
This is because oftentimes only one spouse carries the child or adopts the child. Even if the child is raised by both spouses together and both spouses hold out as being the child’s parent, the non-biological or non-adoptive parent must go to court to obtain an order stating they are the child’s legal parent. If they fail to do so, it may limit their child custody options in a divorce.
Same-sex divorce presents unique challenges
Same-sex couples face unique divorce challenges. Any divorce, however, has the potential to quickly become complex, and oftentimes emotions run high making it difficult to navigate the divorce process alone. Fortunately, family law attorneys in Georgia can explain the process of divorce to clients and can advocate for their client’s interests.