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Issues in Same-Sex Divorce

E.N. Banks-Ware Law Firm LLC June 21, 2022

It has taken a long time for same-sex couples to be legally wed. It took the landmark Supreme Court decision in Obergefell v. Hodges in 2015 to legalize gay marriage in Georgia and in every other state that did not already recognize these unions. That recognition means that gay couples can enjoy all the benefits of marriage that opposite-sex couples have enjoyed for so long.

With the advent of gay marriage came the advent of gay divorce. Although it seems that like same-sex marriage, same-sex divorce should work the same as heterosexual divorce, it does not. There are issues that make gay divorce complex, complicated, and completely frustrating.

E.N. Banks-Ware Law Firm LLC helps clients navigate the challenges of same-sex divorce in Lithonia, Decatur, Conyers, Lawrenceville, Covington, and McDonough, Georgia. Noreen Banks-Ware has been helping divorce clients for more than 30 years and same-sex clients since 2015.

How Does Same-Sex Marriage Work in Georgia?

Same-sex marriage has been legal in Georgia only since 2015. Since then, gay couples have been able to take advantage of the benefits of marriage, such as joint income tax returns, joint property ownership and joint tenancy with right of survivorship, spousal employment benefits including health insurance, pensions, and retirement, and the ability to adopt children as a couple.

What Are Common Issues in Same-Sex Divorce?

The issues in same-sex divorce are not shared with heterosexual divorce. Because the legality of gay marriage is so new, case law applicable to most of these challenges has not yet caught up. It could take a very long time for that to happen. Until it does, divorce courts are left with deciding unique issues without precedent which means how a case is decided by one judge may differ from how it is decided by another.

Here are four of the unique issues couples commonly face in same-sex divorce:

  1. The actual length of time same-sex couples were together is not always accurately considered in a divorce. For example, the longer the couple is married, the longer a spouse may be awarded alimony. Alimony is a tool to provide economic fairness in divorce. A couple who has lived as married for decades but married only after same-sex marriage was legal loses the consideration of the longevity of the relationship.

  2. Decisions regarding separate and marital property are affected. In any divorce, what one spouse owned prior to the marriage is separate property that, for the most part, is not subject to division in divorce. What was acquired after the date of the marriage is community property and those assets are divided in an equitable way, not necessarily equally, in Georgia divorce. So, again, this complicates gay divorce. A couple who has been sharing a life for years prior to being able to legally wed will have very limited property recognized as marital property and will face the complex challenge of determining who is the owner of the remaining property, considered as separate property.

  3. Child custody is often the most contentious and emotional issue in any divorce. In a same-sex divorce, it can be devastating. Before same-sex marriage was recognized in Georgia, gay couples could not adopt children as a couple. Moreover, some couples choose to have biological children which are biological to only one of the pair. If the non-adoptive or non-biological spouse never formally adopted the children after the couple wed, that spouse is entitled to no legal right to custody or visitation of the children after divorce.

  4. There are also certain tax issues unique to same-sex divorce. A spouse could also face substantive tax issues in gay divorce. For example, couples shared a home for many years prior to being able to marry. Only the name of one spouse is on the deed, although both have been paying the mortgage and upkeep for the duration of their relationship. If the court will agree that the home should be considered community property in the divorce, the spouse whose name is on the deed will be required to transfer half the value of the property to the other spouse. That spouse would then be forced to pay federal tax on the value of their share of the property while the other spouse will not. 

Same-Sex Divorce Attorney in Lithonia, Georgia

Attorney Banks-Ware recognizes the unique issues of same-sex divorce, but she is committed to working diligently to help her clients get the fair treatment they deserve in the courts in Lithonia and throughout Georgia.

If you are considering divorce or have been served divorce papers by a same-sex spouse, a regular family law attorney isn’t enough. You need a same-sex divorce attorney willing to fight for you. Call E.N. Banks-Ware Law Firm LLC today.