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Same-Sex Divorce

Same-Sex Divorce

 The state of Georgia's statutory definition of marriage is:

(a) It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.

(b) 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.

O.C.G.A. § 19-3-3.1. Although this is the current law on the books in Georgia, the recent U.S. Supreme Court decision Obergefell, et al v. Hodges, 576 U. S. ____ (2015), challenges the legality of Georgia’s law regarding same sex marriage. In fact, the Court’s ruling quite explicitly deems this section of Georgia law, which prohibits same sex marriage in the state, unconstitutional. In response, Georgia Attorney General Sam Olens issued a statement indicating that “Georgia will follow the law and adhere to the ruling of the Court,” and it has been reported that same sex marriages proceeded without any issues in many Georgia counties. 

So, what does this mean for Georgia and the 14 other states that had previously not recognized same sex marriage?

  1. Same sex couples are entitled to divorce in all states. Prior to the ruling, a same sex couple that married legally in another state and then moved to Georgia could not be divorced here because their marriage was not recognized here. No valid marriage = no divorce. Now, since same sex marriages performed in other states must be recognized here, those couples will be entitled to divorce here.
  2. States can no longer deny a marriage license to a same sex couple. Prior to the court’s ruling, same sex marriage was banned in Georgia and a same sex couple could not legally marry in this state. After the ruling was announced, many couples applied for marriage licenses at the Fulton county courthouse and other courthouses around the state. These couples can now get married at the courthouse (some already did), or at any venue of their choosing. It should be noted that this does not mean that churches or other religious institutions can be forced to perform same sex marriages. This ruling only applies to state and public institutions.
  3. Same sex marriages performed in other states must be recognized. Prior to the court’s ruling, some states allowed same sex marriage, while others did not. A same sex couple could have gotten married in Vermont, but if they moved to Georgia, their marriage would not be recognized here and, thus, neither party would be entitled to spouse’s benefits in this state. Now, same sex couples married legally in another state can have their marriage recognized in Georgia – they do not have to have another wedding ceremony in this state.
  4. Same sex couples are now entitled to equal benefits under the law. Prior to this ruling, the two parties in a same sex couple could not both be listed on a birth certificate. Consider the case of a lesbian couple that is having a child via in vitro fertilization. Only the woman carrying the child could be listed on the birth certificate. The other had no rights whatsoever. This ruling changes that and would give parental rights to both parents in this situation. In addition, this ruling paves the way for same sex spouses to receive death benefits and to make healthcare decisions for their sick partner in the hospital.