In the State of Georgia, gay marriage was not recognized as legal until after the United States Supreme Court decisions of United States v. Windsor (2013), and Obergefell v. Hodges (2015), decisions. These, in total, struck down the Defense of Marriage Act, 28 U.S.C. 1738C, that had enabled the State of Georgia to not recognize gay marriages performed legally in other states, despite the Full Faith and Credit requirements of the United States Constitution.
That’s a paragraph full of historical decisions, but the bottom line is gay marriage is now legal, right?
Well, it is not that simple:
- Yes, gay marriage is legal and recognized in the State of Georgia.
- But, what if you were married prior to the June 26, 2015 Obergefell decision?
Are you still legally married in the State of Georgia?
This is an important issue, and is currently being debated in a case. It was a lesbian marriage performed in 2010 in a state that recognized gay marriage. The marriage between these two women was legal in that particular state at the time of marriage. However, the marriage was not legal in the State of Georgia, and Georgia did not recognize any gay marriage, until after the Obergefell decision. So the question is, under the law of Georgia are these people legally married at all, if their marriage was not lawful at the time it was made?
There are three ways possible interpretations:
- The marriage is made retroactively legal to the date it was made in 2010
- The marriage became legal in 2015 only after the Supreme Court overturned Georgia law that made it unlawful
- There is no marriage between these two women
Interpretation matters because one of the women has filed for divorce in the State of Georgia.
In this marriage one spouse made all the money and accumulated all the assets. Equitable distribution of property is only legally authorized in the State of Georgia for spouses who are legally married to each other. So until the parties were legally married, the non-earning spouse would have no interest in any of the assets accumulated by the money-earning spouse. This could potentially save the money-earning spouse an awful lot of money if the parties are deemed not legally married, or if the marriage only became legal in 2015.
- If they are considered legally married in 2010, both spouses would have an equitable interest in the 401K earnings of the earning spouse going back to 2010.
- If the parties are considered legally married beginning in 2015, then that equitable interest would only start in 2015
- If the parties are considered not married to each other at all, despite gay marriage otherwise now being legal, then the non-earning spouse has no interest at all in the money-earning spouse’s 401K
The answer to this question is not clear and will be argued in the proper case.
Strategically, if you are in a gay marriage and want to protect your assets in a divorce, be sure your attorney is in a position to give you the best advice based on current case law. If you are happily married, but were married in an otherwise legal gay marriage prior to the year 2015, you may want to have a second marriage ceremony just to confirm that your marriage, although otherwise legal, is legally recognized in the State of Georgia.
Scott Shaw is founder and principle of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309 or contact us.