By Nicholas Baker, Esq.
Same-Sex Marriages in Georgia
While same-sex marriage is recognized by the Federal government, by the District of Columbia, and by 17 states, and counting, the Georgia Constitution expressly prohibits same-sex marriages in the state of Georgia. This prohibition not only prohibits same sex couples from entering into marriage in Georgia, it also prohibits the state from recognizing same-sex marriages entered into in other states.
Georgia law specifically states that same-sex marriages will be considered void in the state of Georgia. Furthermore, any rights purportedly granted by the issuance of a same-sex marriage license in another state, cannot be enforced by Georgia courts. In addition, the courts have no jurisdiction to grant divorce, award separate maintenance (i.e. alimony) or to rule on the rights of the parties arising from the marriage. While there have been multiple legal challenges against this Constitutional ban, including a challenge currently pending in Federal court, as of the writing of this article, the ban remains in full force.
Therefore, same-sex couples living in the State of Georgia, whether married or not, face several issues not faced by married heterosexual couples. This article will explore the unique challenges that same-sex couples face; the options that such couples have to strengthen their legal rights both during their relationship and upon separation or divorce; and the benefits that same-sex couples living in Georgia have available.
Unique Challenges Faced By Same-Sex Couples
The State of Georgia will only recognize a parent's rights where a legal parent-child relationship has been created or established. Under Georgia law, this legal relationship is created upon the happening of one of three events: when a person gives birth to a child, by marriage prior to the birth of the child, and by court order. Since the state of Georgia does not recognize same-sex marriages, when a child is born to a same-sex couple, the co-parent does not receive any legal parental relationship by virtue of the child's birth.
Furthermore, married same-sex parents who move to Georgia are often unaware that Georgia does not recognize the parent-child relationship of the co-parent simply because he or she is listed on the birth certificate. Past decisions from Federal courts indicate that Georgia is not required under the Full Faith and Credit clause of the United States Constitution to recognize a legal parent-child relationship where the same-sex co-parent is on the birth certificate by virtue of a same-sex marriage. Therefore, in order to establish the legal parent-child relationship in Georgia, the co-parent needs to obtain a Court order through adoption or, if the co-parent is the biological father, through legitimation. While Georgia adoption laws are silent on adoptions by same-sex parents, several courts have allowed same-sex co-parents to adopt their partner's children or the children of the relationship.
Once both parents have established a legally recognized parent-child relationship, Georgia courts will hear custody disputes between the parents.
Options that same-sex couples have to strengthen their legal rights during their relationship
While same-sex couples do not enjoy the traditional legal protections afforded to marriages recognized by the State of Georgia, there are several actions that same-sex couples can take to establish and protect their legal rights. Same-sex couples have the same rights as heterosexual couples in the state of Georgia to enter into contractual legal agreements. There are various legal options available to help protect a same-sex partner's rights, including creating a Will, appointing various powers of attorney, creating an Advance Directive for Healthcare, and entering into a Domestic Partnership Agreement.
A Will is a legal document by which a person directs how property and other assets will be distributed upon their death. The normal rules of inheritance in Georgia do not allow for same-sex partners to inherit their partners' property, unless their partner is specifically named as a designated beneficiary in a valid Will. In addition, a Will can be used to designate who should become guardian of a person's children if that person dies. Therefore, the creation of Wills should be an essential part of any long-term planning by same-sex partners.
An Advanced Directive for Healthcare, often referred to as a "Living Will", allows a person to appoint someone whom they want to make medical decisions on their behalf should they become unable to do so. Without an Advanced Directive for Healthcare in place, Georgia hospitals will look to the closest biological family member to make those decisions. Therefore, same-sex partners should have Advanced Directives for Healthcare in place to ensure that they have the legal right to make crucial medical decision for each other.
A financial power of attorney can be used by same-sex partners to grant each other access to the other's finances, in the event either partner becomes unable to manage their own finances. A power of attorney for minor children can be established by a legal parent, to give the co-parent access and input on medical, educational, and other decisions affecting the welfare of the children.
Domestic Partnership Agreements should be considered by any non-married couple in a long-term relationship or preparing to enter a long-term committed relationship. These agreements are similar in many ways to a prenuptial agreement, and can be used to set forth the rights and understandings of the parties with respect to property ownership, division of property upon separation, and various other issues. These agreements should be drafted by an experienced licensed attorney to maximize their enforceability.
Options that same-sex couples have available to strengthen their legal rights during separation or divorce
The normal rules regarding division of property and awards of separate maintenance during a divorce do not apply to the dissolution of a same-sex relationship. Therefore, during such a dispute, individuals should look to other areas of the law to protect or enforce their rights. While this article does not attempt to identify and explain all legal remedies available, a few of the key protections are highlighted below: The division or real property is governed by Georgia statue, and the property must be statutorily portioned when the property is held in common. However, in certain instances when no statutory remedy is available, Georgia law allows the equitable partition of property. Other remedies may be available to a separating party under theories of implied trust, unjust enrichment, oral promises, or implied promises. Many of these remedies may also be available for the division of personal property. With respect to the division of jointly held bank accounts and other joint financial accounts, Georgia courts typically partition these accounts, pro-rata, based on the net contributions made by each party. While there are numerous remedies available, many of these remedies provide relief only in very fact specific circumstances. Therefore, it is important that a distressed party consult an experienced licensed attorney who can evaluate their options.
Benefits available to same sex couples living in Georgia
In 2013, the Supreme Court of the United States found the Defense of Marriage Act ("DOMA") to be unconstitutional. The Court held in its 5-4 decision that the Constitution prevents the federal government from treating state-sanctioned heterosexual marriages differently than state-sanctioned same-sex marriages. This decision opened up, and made available to same-sex couples, many of the federal benefits that were previously available only to married heterosexual couples. These federal benefits are now available to same-sex married couples regardless of the state that they live in. Therefore, even though same-sex couples living in Georgia will not receive the state benefits provided to married couples, they are eligible to receive federal benefits. In addition to federal benefits, various Georgia employers and local governments provide benefits to same-sex couples.
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