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Attorneys Vic Hill and Brad MacDonald

The surprising issue for dividing property in a same-sex divorce

In most regards, same-sex marriages are like heterosexual marriages. They involve two people pledging to love, honor and support one another. They usually involve cohabitation and mingled finances. The only real difference is that the government didn’t recognize same-sex marriages even 10 years ago.


Same-sex divorces typically follow the same steps as heterosexual divorces, although there are complications that can arise. For example, same-sex couples that have children may have custody concerns because only one parent has a legal or biological connection to the child.


However, there is another issue that can arise in any long-standing same-sex marriage that eventually ends in divorce. It is actually the newness of same-sex marriage that complicates divorces for those couples. 


The problem when your relationship predates your ability to marry

When you divorce, you have two approaches. If you and your spouse can agree on everything, you can ask for an uncontested filing where you set your own terms. Otherwise, you will file for a contested divorce, and a Georgia family law judge will decide how to divide your property.


Typically, marital assets acquired during your marriage and income earned while married are subject to division. However, you may have many assets that fall into a legal gray area due to the length of your relationship. If you essentially lived like a married couple but could not legally get married, you may have commingled assets and purchased major items together long before the state recognized your relationship.


Everything from your vehicles to your home might fall outside of the traditional scope of marital property. However, you likely acquired it with the intention of sharing it with your spouse. The courts may have to carefully consider your relationship and assets even before Georgia recognizes your marriage to achieve a truly fair ruling.


Every same-sex divorce paves the way for greater equality

Same-sex marriages have not yet been legal at the federal level for even a decade. It is unsurprising that the courts still sometimes struggle with the nuances and complications that can arise in a same-sex marriage. Each couple that moves forward with a dissolution helps pave the way for others in the future.


Reviewing your financial records and learning about state law can give you a better idea of how to approach property division in an upcoming divorce.